92426499 state of north dakota vs rodney brossart
TRANSCRIPT
STATE OF NORTH DAKOTA
COUNTY OF NELSON
State of North Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State of North Dakota ) v )
Susan Brossart )
State of North Dakota ) v )
Abby Brossart )
State of North Dakota ) v )
Alex Brossart )
State of North Dakota ) v )
Thomas Brossart )
State of North Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTHEAST JUDICIAL DISTRICT
NOTICE OF MOTION AND MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
TO DOUGLAS G MANBECK NELSON COUNTY STATES AITORNEY 320 3RD
STREET WEST PO BOX 533 LAKOTA ND 58344-0533 ATTORNEY FOR THE PLAINTIFF
PLEASE TAKE NOTICE THAT based on NDRCrimP 12 and NDRCt 32 the
Defendants jointly move to dismiss the criminal charges filed against them The Defendants
request a hearing and oral argument The Defendants move to dismiss the criminal charges
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or alternatively to suppress evidence as a result of outrageous governmental conduct
unlawful surveillance illegal seizures and searches unconstitutional application of North
Dakota law vindictive prosecution and other statutory and constitutional injury
This Motion will be based upon this Notice ofMotion the Brief in Support ofMotion
attached herewith the attached exhibits all papers and documents presently on file herein as
well as any other documentary material and further evidence filed prior to or introduced at
the time of any hearing on Defendants Motion
PLEASE TAKE NOTICE TIIAT NDRet 32 provides 14 days after service of a
brief within which to serve and file an answer brief and other supporting papers Upon the
filing of briefs or upon expiration of the time for filing the Motion is deemed submitted to
the Court unless counsel for any party requests oral argument on the motion If any party
who has timely served and filed a brief requests oral argument the request must be granted
A timely request for oral argument must be granted even if the movant has previously served
notice indicating that the motion is to be decided on briefs The party requesting oral
argument shall secure a time for the argument and serve notice upon all other parties
PLEASE TAKE NOTICE TIIAT failure to file a brief by the adverse party may be
deemed an admission that in the opinion of party or counsel the Motion is meritorious
Extensions of time for filing briefs and other supporting papers or for continuance of the
hearing on a motion may be granted only by written order of Court All requests for
extension of time or continuance whether written or oral must be accompanied by an
appropriate order form
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~V Dated this JfL da of April 2012middot
By __~__~~________ Bruce D Quic (03510) Mark A Friese (05646) VOGEL LAW FIRM 218 NP Avenue PO Box 1389 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR RODNEY BROSSART
Dated this 0 da ofApril 2012
By ________~=-______ _ Ross Brandborg (06029) BRANDBORG amp GAST 35 4th Street North Suite 201 Fargo ND 58102 Telephone 7012370099
ATTORNEYS FOR ABBY ALEX JACOB THOMAS and SUSAN BROSSART
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i
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF NELSON NORTIIEAST JUDICIAL DISTRICT
State ofNorth Dakota
v
Rodney Brossart
Plaintiff
Defendant
) ) ) ) ) ) ) ) )
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
State ofNorth Dakota v
Susan Brossart
) ) )
File No 32-2011-CR-00074
State ofNorth Dakota v
Abby Brossart
) ) )
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota v
Alex Brossart
) ) )
File No 32-2011-CR-00046
v Thomas Brossart
) )
File No 32-2011-CR-00048
State ofNorth Dakota v
Jacob Brossart
) ) )
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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I
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct of governmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a fonner missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart farm Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart farm Insp Frederickson and Dep Braathen located
Rodney pumping water near his farm on l09th Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
or alternatively to suppress evidence as a result of outrageous governmental conduct
unlawful surveillance illegal seizures and searches unconstitutional application of North
Dakota law vindictive prosecution and other statutory and constitutional injury
This Motion will be based upon this Notice ofMotion the Brief in Support ofMotion
attached herewith the attached exhibits all papers and documents presently on file herein as
well as any other documentary material and further evidence filed prior to or introduced at
the time of any hearing on Defendants Motion
PLEASE TAKE NOTICE TIIAT NDRet 32 provides 14 days after service of a
brief within which to serve and file an answer brief and other supporting papers Upon the
filing of briefs or upon expiration of the time for filing the Motion is deemed submitted to
the Court unless counsel for any party requests oral argument on the motion If any party
who has timely served and filed a brief requests oral argument the request must be granted
A timely request for oral argument must be granted even if the movant has previously served
notice indicating that the motion is to be decided on briefs The party requesting oral
argument shall secure a time for the argument and serve notice upon all other parties
PLEASE TAKE NOTICE TIIAT failure to file a brief by the adverse party may be
deemed an admission that in the opinion of party or counsel the Motion is meritorious
Extensions of time for filing briefs and other supporting papers or for continuance of the
hearing on a motion may be granted only by written order of Court All requests for
extension of time or continuance whether written or oral must be accompanied by an
appropriate order form
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~V Dated this JfL da of April 2012middot
By __~__~~________ Bruce D Quic (03510) Mark A Friese (05646) VOGEL LAW FIRM 218 NP Avenue PO Box 1389 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR RODNEY BROSSART
Dated this 0 da ofApril 2012
By ________~=-______ _ Ross Brandborg (06029) BRANDBORG amp GAST 35 4th Street North Suite 201 Fargo ND 58102 Telephone 7012370099
ATTORNEYS FOR ABBY ALEX JACOB THOMAS and SUSAN BROSSART
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i
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF NELSON NORTIIEAST JUDICIAL DISTRICT
State ofNorth Dakota
v
Rodney Brossart
Plaintiff
Defendant
) ) ) ) ) ) ) ) )
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
State ofNorth Dakota v
Susan Brossart
) ) )
File No 32-2011-CR-00074
State ofNorth Dakota v
Abby Brossart
) ) )
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota v
Alex Brossart
) ) )
File No 32-2011-CR-00046
v Thomas Brossart
) )
File No 32-2011-CR-00048
State ofNorth Dakota v
Jacob Brossart
) ) )
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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I
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct of governmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a fonner missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart farm Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart farm Insp Frederickson and Dep Braathen located
Rodney pumping water near his farm on l09th Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
~V Dated this JfL da of April 2012middot
By __~__~~________ Bruce D Quic (03510) Mark A Friese (05646) VOGEL LAW FIRM 218 NP Avenue PO Box 1389 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR RODNEY BROSSART
Dated this 0 da ofApril 2012
By ________~=-______ _ Ross Brandborg (06029) BRANDBORG amp GAST 35 4th Street North Suite 201 Fargo ND 58102 Telephone 7012370099
ATTORNEYS FOR ABBY ALEX JACOB THOMAS and SUSAN BROSSART
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i
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF NELSON NORTIIEAST JUDICIAL DISTRICT
State ofNorth Dakota
v
Rodney Brossart
Plaintiff
Defendant
) ) ) ) ) ) ) ) )
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
State ofNorth Dakota v
Susan Brossart
) ) )
File No 32-2011-CR-00074
State ofNorth Dakota v
Abby Brossart
) ) )
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota v
Alex Brossart
) ) )
File No 32-2011-CR-00046
v Thomas Brossart
) )
File No 32-2011-CR-00048
State ofNorth Dakota v
Jacob Brossart
) ) )
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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I
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct of governmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a fonner missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart farm Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart farm Insp Frederickson and Dep Braathen located
Rodney pumping water near his farm on l09th Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
i
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF NELSON NORTIIEAST JUDICIAL DISTRICT
State ofNorth Dakota
v
Rodney Brossart
Plaintiff
Defendant
) ) ) ) ) ) ) ) )
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
State ofNorth Dakota v
Susan Brossart
) ) )
File No 32-2011-CR-00074
State ofNorth Dakota v
Abby Brossart
) ) )
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota v
Alex Brossart
) ) )
File No 32-2011-CR-00046
v Thomas Brossart
) )
File No 32-2011-CR-00048
State ofNorth Dakota v
Jacob Brossart
) ) )
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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Nelson County NO
I
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct of governmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a fonner missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart farm Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart farm Insp Frederickson and Dep Braathen located
Rodney pumping water near his farm on l09th Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
5
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct of governmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a fonner missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart farm Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart farm Insp Frederickson and Dep Braathen located
Rodney pumping water near his farm on l09th Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
12
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart farm Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart farm Insp Frederickson and Dep Braathen located
Rodney pumping water near his farm on l09th Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
physically blocked Jacobs rescue effort ratcheting Jacobs arm behind his back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 of theNorth Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
half mile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention ofa no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of fIrearms
The Brossarts told officers they had no right to be there The Brossarts ultimately went back
inside leaving the firearms in the house Officers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowcalf pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their torment of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal of the charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
19
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure ofthe livestock witho~t unnecessary delay if the owner or person in possession is known to the personmiddot suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
6
Fliedmiddot Clerk Of Oislricl Court 4101201230302 PM
Nelson County NO
person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
7
F lied Clerk Of Dlstricl Court 4101201230302 PM
Nelson County NO
statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock Ifthe court fmds that the
livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part of police See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence ofownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
defmition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
7
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statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
8
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
11
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
statutory defmition of estray) 3613-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under North Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 ~ 14 601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confinement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset multiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In file 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chiefbrand inspector after taking possession and control of estray cattle As
1 Even if the Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See LaPorte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
outlined above the trespassing- cattle were not estrays Mr Brossart had absolutely no
obligation to notifY either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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Nelson County NO
BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom of speech In Texas v Johnson 491 US 397 414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v California 274 US 357 374 (1927) (Brandeis 1
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v SchoIllert 469 NW2d 808 814 (ND 1991) (Vande Walle 1 concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaplinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell 1 concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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Nelson County ND
reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Terminiello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punisbment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in file 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application of NDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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Nelson County NO
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence of officers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence oflaw enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453 457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
15
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Nelson County ND
seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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Nelson Counly NO
excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29-06-15 a law enforcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justifY an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seize Mr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390 392 (ND
1995)) Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept of Transp 2011 ND 235 ~ 1
807 N W2d 602 The rule pennitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R LaFave Search and
Seizure sect 92(c) at 32 (3d ed1996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidence-
including Mr Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 ~ 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
~ 22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
Filed - Clerk Of District Court 410201230037 PM
Nelson County NO
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
3
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
Filed - Clerk Of District Court 4102012 30037 PM
Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
155 at 1Lmiddot If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdman
170 NW2d 872 (ND1969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing INS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978)) Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
15
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Nelson County ND
seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
16
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
17
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Nelson County ND
reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
18
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
19
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Nelson County NO
The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
17
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
16
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excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
17
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Nelson County ND
reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
excessive and unconstitutional use of force further compounds the injury resulting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question oflaw for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppen 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
Filed - Clerk Of District Court 410201230037 PM
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
6
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement condnct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
ann No reasonable person would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
Filed - Clerk Of District Court 410201230037 PM
Nelson County NO
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
3
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
4
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
6
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See ~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infiltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned wcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use ofUmnanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
23
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
Filed - Clerk Of District Court 410201230037 PM
Nelson County NO
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
3
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Nelson County ND
physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
4
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
5
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
6
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
7
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
The Fourth Amendment of the United States Constitution made applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end--were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson 1 dissenting) (Uncontrolled
search and seizure is one of the fIrst and most effective weapons in the arsenal of every
arbitrary government )
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brassarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest of Rodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
Filed - Clerk Of District Court 410201230037 PM
Nelson County NO
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
3
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
4
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
conduct In State v Ktunmer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting I Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 atp 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle l concurring) (citing Hampton v United States 425 US
484 96 SCt 1646 48 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset ofthis case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure of Rodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
Filed - Clerk Of District Court 410201230037 PM
Nelson County NO
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
4
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
5
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
12
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed tomiddot safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White J dissenting) United States v Calandrb 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
6
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
r0 Dated this (0 ~April 2012 ~0_1_2_____---shyBYmiddot~ ~
Bruce D Quick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ~ 58102 POBox l389 Telephone 7012370099 Fargo~ 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATIORNEYS FOR RODNEY JACOB THOMAS and SUSAN BROSSART BROSSART
13663742
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STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
9
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
STATE OF NORTH DAKOTA
COUNTY OF NELSON
State ofNorth Dakota ) )
Plaintiff ) )
v ) )
Rodney Brossart ) )
Defendant )
State ofNorth Dakota ) ~ )
Susan Brossart ) --------~--------------------------------------------State ofNorth Dakota )
v ) Abby Brossart )
State ofNorth Dakota ) v )
Alex Brossart )
v ) Thomas Brossart )
State ofNorth Dakota ) v )
Jacob Brossart )
IN DISTRICT COURT
NORTIIEAST JUDICIAL DISTRICT
BRIEF IN SUPPORT OF MOTION TO DISMISS
File Nos 32-2011-CR-00049 00071
File No 32-2011-CR-00074
File Nos 32-2011-CR-00050 00076
File No 32-2011-CR-00046
File No 32-2011-CR-00048
File No 32-2011-CR-00047
Rodney Susan Abbey Alex Thomas and Jacob Brossart (collectively Brossarts)
jointly move for an Order of the Court dismissing the criminal charges or alternatively
suppressing evidence The Brossarts propose the Court join their respective cases for the
purposes of a single evidentiary hearing and oral argument at a date and time to be
established by the Clerk of Court
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FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
FACTS
Based on the discovery to date including a video copy of the torturous beating of
Rodney Brossart which is attached to this Brief at a hearing on the Brossarts Motion the
evidence will show The Brossarts are lifelong North Dakota residents residing in Nelson
County North Dakota The Brossarts are an exceedingly close-knit family who prefer the
company of one another over the company of extended family or friends The Brossarts are
exceedingly hard-working farmers and ranchers who prefer to limit their contact with
governmental actors The Brossarts have been repeat victims of overreaching officious and
unlawful conduct ofgovernmental officers
On the evening of June 22 2011 or early morning hours of June 23 2011 three
cowcalf pairs escaped from the Michigan North Dakota ranch of Chris Anderson (Mr
Anderson) The cattle wandered to the Brossarts property and commenced to devour feed
and hay intended for the Brossarts own cattle The Brossarts not knowing the owner of the
cattle secured the cattle in a pen Shortly thereafter Mr Anderson located the cattle on the
Brossarts property-a former missile site specifically and legally described in the search
warrant on file with the Court Mr Anderson spoke directly to Rodney Brossart seeking the
return of the cattle Consistent with North Dakota law Rodney asked that Mr Anderson
tender remuneration for the damage caused by the cattle to secure their return See NDCC
sect 36-11-10(1) (noting a person suffering damages by reason of the trespass of any livestock
may take up the offending livestock) see also id (noting the person may retain the livestock
until damages have been paid or security for damages is approved by a district judge)
Rather than contacting his insurance agency and rather than tendering the required
lawful charges Mr Anderson went directly to the Nelson County Sheriffs office enlisting
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the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
4
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
the assistance of Nelson County Deputy Eric Braathen (Dep Braathen) Rather than
advising Mr Anderson that remuneration was required and intent to commence a
disturbance at the Brossart fann Dep Braathen mobilized State Patrol units and Stockmans
Association Inspector Fred Frederickson (Insp Frederickson) Braathen advised Insp
Frederickson that there have been problems with Rodney in the past apparently referring
to instances in which law enforcement had agitated Rodney during the service of civil
papers
While traveling to the Brossart fann Insp Frederickson and Dep Braathen located
109thRodney pumping water near his farm on Avenue Northeast Officers approached
Rodney while Jacob Brossart stood nearby When Rodney declined to release the cattle
without payment for damages officers insisted that they would go onto the Brossart
property to which Rodney advised the officers that they would not return if they went on his
property without permission Officers then advised Rodney that they wquld secure a
warrant and provide documentation of ownership of the cattle Rodney again advised the
officers that the cattle were trespassing on his property and he attempted to return to his
work Braathen prohibited Rodney from returning to work telling Rodney that he was under
arrest The basis for the arrest was never provided quite likely because the purported arrest
was unlawful
When Rodney would not immediately relent to the unlawful arrest the brazen torture
that followed defies belief That torture in part is captured on video and a copy of the
recording is attached to this brief Like a water-boarding interrogator Braathan repeatedly
inflicted Taser electrical shocks to Rodney all while Rodney violently convulsed in a puddle
ofwater Horrified at the ongoing torture Jacob attempted to run to his father Frederickson
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physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
physically blocked Jacobs rescue effort ratclieting -Jacobs ann behind his -back and
handcuffing him Frederickson directed Jacob to Braathans squad car and locked him
inside
Meanwhile Abby and Thomas Brossart arrived on scene Upon seeing her beaten
father Abby approached Dep Braathen and allegedly pushed the deputys hand away from
her face Baathen summarily arrested Abby for felony assault upon a police officer
Fredrickson approached Thomas seeking permission to check on the cattle that were
located on the Brossart property Thomas advised Frederickson that a warrant was necessary
to enter Brossart property Frederickson with the assistance of the Nelson County States
Attorney obtained a warrant to search the missile site located in the West Half of the
Northwest Quarter of Section 29 Township 152 Range 59 Nelson County ND The
warrant denoted that three cow calf pairs were secreted and concealed on the property
in violation of Chapter 36-13 ofthe-North Dakota Century Code
Officers returned with a search warrant Frederickson advised two Brossart brothers
of the search warrant and the Brossart brothers returned to their home located at least one-
halfmile from the missile site and clearly outside the curtilage of the home Discontent with
simply securing the cattle and leaving law enforcement entered into the private yard of the
Brossart family in direct contravention of a no trespassing sign and without consent a search
warrant or an exception to the warrant When officers made their warrantless entry onto the
Brossart property they observed several Brossart family members in possession of flrearms
The Brossarts told offIcers they had no right to be there The Brossarts ultimately went back
inside leaving the flrearms in the house OffIcers retreated leaving a patrol vehicle in
Brossart driveway
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Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Officers then mobilized state and county law enforcement a law enforcement
commando team from Grand Forks and they dispatched an unmanned aerial spy plane
Before the troops could storm the Brossart ranch officers called off the mission overnight
and scheduled a meeting the next morning
Officers commandos and the spy plane conducted surveillance on the Brossart
property the next morning Officers arrived at the missile site cut a lock and secured the
three cowca1f pairs While the cattle were being loaded a farm tractor with two occupants
and an all-terrain vehicle with one passenger approached the far end of the missile site
Commandos seized the two vehicles physically pulling two occupants from the tractor and
one from the all-terrain vehicle All three were arrested
With five members of the Brossart family in custody and with the cattle in the
custody of the brand inspector officers were still unwilling to end their tonnent of the
Brossart family Officers sought and obtained a second warrant to search the entire Brossart
farmstead for weapons
LAW AND ARGUMENT
Thisis a case ofoutrageous government conduct for which this Court should exercise
supervisory power to bar prosecution As will be outlined below alone or combined
prosecution should be barred or evidence should be suppressed based upon 1) outrageous
governmental conduct 2) the unlawful warrantless arrest of Rodney Brossart 3) the
provocation and excessive use of force against Rodney Brossart 4) the unlawful defacto
arrest of Jacob Brossart 5) warrantless occupation of the farm 6) the warrantless use of
unmanned military-like surveillance aircraft and 7) the use of commandos to infiltrate the
Brossart ranch The combined injury requires dismissal ofthe charges
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BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
BACKGROUND
This entire case was set in motion by a mistaken law enforcement interpretation of
North Dakota law During the initial contact between Rodney Brossart Dep Braathen and
Insp Frederickson Mr Brossart repeatedly advised officers that he was lawfully detaining
the cattle as trespassing livestock Officiously-and falsely-officers attempted to claim
authority to dispossess Mr Brossart of his lawful lien claiming the cattle were estrays
North Dakota estray law Ch36-13 NDCC however does not apply Instead Mr
Brossarts lawful possession of the cattle was-as he insisted-govemed by NDCC sect 36shy
11-10 which provides
sect 36-11-10 Trespassing livestock may be distrained--Notice to owner-shySecurity for release
1 The person suffering damages by reason of the trespass of any livestock may take up the offending livestock The person suffering damages shall notify the owner or the person in possession of the livestock at the time of the trespass of the seizure of the livestock witho~t unnecessary delay if the owner or person in possession is known to the person suffering damages and is a resident of and present within the county in which the trespass occurred The person suffering damages may retain the livestock in that persons custody until
a The damages sustained by reason of the trespass and the costs in the action to recover the damages have been paid or
b Good and sufficient security for the payment of the damages and costs is given provided the security is approved by a district judge serving the county in which the livestock is taken up
2 If the owner of the offending livestock elects to give security the owner shall give to the person holding the livestock notice that security will be given and the date and hour when the security will be submitted to the district judge for approval The notice must be given at least one day before the date set for the submission of the security to the judge The cost of serving notices required under this section may be taxed as costs in the action
3 Where applicable the provisions of section 36-11-07 may be raised as an affirmative defense in any proceedings under this section and the owner or
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person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
person entitled to possession of the livestock may apply to a court of competent jurisdiction for the return of the livestock If the court fmds that the livestock has been wrongfully distrained the person who causes the livestock to be wrongfully distrained is liable for all damages suffered by the owner or person entitled to possession of the livestock together with the costs of the action and reasonable attorneys fees
(emphasis added) Simply the Brossarts were in lawful possession of the trespassing cattle
and law enforcement efforts to dispossess the Brossarts of the cattle constituted criminal
conduct on the part ofpolice See NDCC sect 36-11-19 (noting persons who take livestock
lawfully held under the trespassing NDCC sect 36-11-10 are guilty of a class B
misdemeanor) Braathen and Frederickson should be prosecuted not the Brossarts
Wrongly law enforcement claims the cattle were estrays requiring the Brossarts to
notify the sheriff or chief brand inspector as provided by NDCC sect 36-13-01 Contrary to
law enforcement claims estray law is inapplicable because the trespassing animals were not
estrays See NDCC sect 36-22-01 (defining estray Any marked or branded cattle horse or
mule found at any livestock market to which a shipper cannot produce title or satisfactory
evidence of ownership) At common law an estray was any beast by nature tame or
reclaimable such as a sheep ox pig or horse which was found wandering at large or
lost its owner being unknown 4 Am Jur 2d Animals sect 46 (2012) see also Campbell v
Hamilton 172 NW 810 (ND 1919) (An estray is a wandering animal whose owner is
unknown-an animal that has strayed away and lost itself A wandering beast which no
one seeks follows or claims) (citation omitted) While the broader common law
definition may suggest any wandering animal is an estray North Dakota law recognizes that
there is no common law where the law is declared by the code NDCC sect 1-01-06 The
present trespassing animals were not estrays See NDCC sectsect 36-22-01 (providing the
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statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
Filed - Clerk Of District Court 4102012 30037 PM
Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
statutory definition of estray) 361-3-01 (permitting taking possession of-an estray provided
the person does not know who owns the estray) Campbell 172 NW at 810
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized See eg Martin v Ludowese 184 NW 575 (ND 1921)
Under forth Dakota law specific statutes control general statutes City of Bismarck v
Fettig 1999 ND 193 14601 NW2d 247 (citing NDCC sect 1-02-07) Section 36-11-10
NDCC is specific and unambiguous a person damaged by the trespass of livestock
irrespective of whether the owner of the livestock is known or not may take up the
offending livestock A person taking possession of trespassing livestock shall notify the
owner of the livestock without unnecessary delay NDCC sect 36-11-10(1) Mr
Anderson the owner of the trespassing cattle had actual knowledge of the location of the
cattle within hours of their confmement Contrary to law enforcement claims the Brossarts
were neither required to notify law enforcement nor were they required to surrender the
cattle until Mr Anderson fulfilled his statutory obligations under NDCC sect 36-11-101
1 At the outset mUltiple charges against Rodney Brossart are improvident and must be dismissed
Rodney Brossart faces numerous improvident charges In fIle 32-2011-CR-00049
Mr Brossart is charged with 1) failure to comply with estray chapter and 2) preventing
arrest or discharge of other duties The charges allege Mr Brossart failed to notify either
the sheriff or chief brand inspector after taking possession and control of estray cattle As
1 Even ifthe Court were to credit law enforcements tortured application ofNorth Dakota law to conclude the trespassing animals were estrays Mr Andersons actual knowledge of the location ofthe cattle satisfied any notice obligation the Brossarts would have had See La Porte v Van Buskirk 217 NW 173 176 (ND 1927) (when the owner of an estray appears and demands the animals the purpose of the statute with respect to notice is satisfied and further statutory steps need not be taken)
8
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outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
9
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
10
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Nelson County N D
may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
11
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
12
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Nelson County NO
the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
outlined above the trespassing cattle were not estrays Mr Brossart had absolutely no
obligation to notify either the sheriff or the brand inspector As a matter of law the charge of
failing to comply with estray chapter fails
Equally as a matter of law the charge of preventing arrest or discharge of other
duties must fail The prosecution charges when approached by law enforcement inquiring
about the estray cattle [Mr Brossart] refused to allow access to the cattle and resisted
arrest As outlined above the cattle were not estrays The owner of the cattle had actual
knowledge of their whereabouts Contrary to the Complaint Mr Brossart had no obligation
to allow [law enforcement] access to the cattle Any claim that Mr Brossart prevented
arrest or discharge of duties must be dismissed as a matter of law As outlined above Mr
Brossart had no obligation to permit law enforcement access to the trespassing cattle As
will be outlined below Mr Brossart had every right to decline unlawful arrest and excessive
force
In file 32-2011-CR-000071 Mr Brossart is charged with among other things theft of
property and terrorizing The prosecution alleges Mr Brossart exercised unauthorized
control over three cow-calf pairs and refused to return the cattle when requested to do so
by law enforcement officers who were attempting to enforce the estray laws What
constitutes unauthorized control requires interpretation and application of NDCC sect 36shy
11-10 which permitted Mr Brossart to distrain the cattle and which did not authorize law
enforcement seizure of the cattle Interpretation and application of a statute is a question of
law State v Deutscher 2009 ND 98 ~ 15 766 NW2d 442 447 (citing In re Estate of
Samuelson 2008 ND 190 ~ 11 757 NW2d 44) Because NDCC sect 36-11-10 vested Mr
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Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Brossart authority to control the trespassing cattle he was in lawful possession and is not
subject to prosecution for theft
The First Amendment provides that Congress shall make no law abridging the
freedom ofspeech In Texas v Johnson 491 US 397414 (1989) the Court said If there
is a bedrock principle underlying the First Amendment it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable The First Amendment ordinarily denies a State the power to prohibit
dissemination of thoughts or ideas even if those thoughts or ideas are false and fraught
with evil consequence Whitney v Californi~ 274 US 357 374 (1927) (Brandeis J
concurring)
Rodney Brossarts statement was not a true threat and prosecution for that
statement violates the First Amendment See Virginia v Black 538 US 343 (2003)
(holding only true threats are denied First Amendment protection) see also City of
Bismarck v Schoggert 469 NW2d 808 814 (ND 1991) (Vande Walle J concurring)
(the First Amendment protects unsavory expression as well as approbatory expression)
The First Amendment prohibits prosecution except when a speaker conveys a serious
expression of an intent to commit an act of unlawful violence Black 538 US at 359
(citation omitted) Mr Brossarts comments were not fighting words and therefore did
not by their very utterance inflict injury or tend to incite an immediate breach ofthe peace
See Chaglinsky v New Hampshire 315 US 568 572 (1942) Both the United States
Supreme Court and the North Dakota Supreme Court have recognized that comments
arguably constituting fighting words when directed to police officers are not Lewis v
New Orleans 415 US 130 135 (1974) (powell J concurring) (A properly trained officer
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may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
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2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
may reasonably be expected to exercise a higher degree of restraint than the average citizen
and thus be less likely to respond belligerently) Houston v Hill 482 US at 451 461
(1987) (The First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers) City of Bismarck v Nassif 449 NW2d 789 795
(ND 1989) City ofBismarck v Schoppert 469 NW2d 808 (ND 1991)
In Tenniniello v Chicago 337 US 1 4 (1949) the Court said Speech is often
provocative and challenging [But it] is nevertheless protected against censorship or
punishment unless shown likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience annoyance or unrest Here
when Rodney Brossart uttered an offhand comment about not returning from a trip to his
property police did not respond with any type of immediate enforcement action Instead
they requested Mr Brossart desist making comments of that nature Mr Brossart complied
with the request After further conversation and when Mr Brossart attempted to return to
work only then did police arrest Mr Brossart for some uncertain offense Mr Brossarts
comments-rendered only after repeated law enforcement threats to invade the Brossart
property-do not constitute true threats and are protected by the First Amendment
Both charges in fJle 32-2011-CR-00049 (failure to comply with estray chapter and
preventing arrest or discharge of other duties) are facially improvident The charges of theft
and terrorizing in file 32-2011-CR-00071 are equally improvident Because these charges all
involve interpretation and application ofNDCC sect 36-11-10 and the First Amendment to
the United States Constitution the invalidity of the charges is a question of law requiring
resolution without trial As an initial matter this Court should dismiss the estray preventing
arrest theft and terrorizing charges against Rodney Brossart
11
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Nelson County ND
2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
12
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Nelson County NO
the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
Filedmiddot Clerk Of District Court 410201230037 PM
Nelson County NO
he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
2 Thewarrantless seizure and arrest of Rodney Brossart was unlawful requiring dismissal of the charges or alternatively suppression of all resulting evidence
Because an offense did not occur or alternatively because no offense occurred in the
presence ofofficers warrantless arrest was not authorized Because there was no objectively
reasonable suspicion or probable cause police lacked authority to seize and arrest
A Warrantless arrest was not permitted because no offense was committed or alternatively no offense was committed in the presence of law enforcement
Law enforcement officiously and falsely claimed Rodney Brossart was subject to
arrest for violating North Dakota estray law Because the trespassing cattle were not estrays
law enforcement had absolutely no authority to compel release of the trespassing cattle
before Mr Anderson complied with NDCC sect 36-11-10 Mr Brossart had not committed
an offense-he simply and rightly insisted that he would retain possession of the cattle until
Mr Anderson complied with the law The officers erroneous belief that Mr Brossart
committed an offense does not obviate the unlawful arrest see Colling v Hjelle 125 NW
453457 (ND 1964) (when no offense has been perpetrated circumstances warranting a
reasonable belief that it was committed will not justify the officer in making the arrest
without a warrant) (citation omitted) see also id at 458 (a misdemeanor must have been
actually committed to justify an arrest without a warrant and the officer must determine at
his peril whether an offense has been committed or not) (citation omitted)
The prosecution claims Mr Brossart failed to notify either the sheriff or the chief
brand inspector that he had taken control of Mr Andersons cattle Even if the Court were
to consider the inapplicable estray statute well-settled North Dakota law establishes that any
obligation to notify law enforcement was extinguished by Andersons actual knowledge of
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the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
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he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
the location of the cattle See La Porte v Van Buskirk 217 NW 173 176 (ND 1927)
(when the owner of an estray appears and demands the animals the purpose of the statute
with respect to notice is satisfied and further statutory steps including law enforcement
notification need not be taken) Law enforcement fabricated a claim that Mr Brossart
violated the law No offense was committed and the resulting arrest was unlawful
Moreover Dep Braathen and Insp Frederickson had no authority to arrest Mr
Brossart for a claimed misdemeanor offense which did not occur in their presence Under
NDCC sect 29~06~15 a law e~orcement officer may arrest for felonies based on probable
cause or for misdemeanors committed or attempted in the officers presence See also
NDCC sect 36-09-24(2) (providing authority of brand inspectors and fieldmen to make
arrests upon view and without [a] warrant for violations committed in the inspectors
presence) Because no offense was committed law enforcement lacked authority to arrest
Colling v Hjelle 125 NW 453 458 (ND 1964) (a misdemeanor must have been actually
committed to justify an arrest without a warrant) Moreover because the claimed criminal
activity did not occur in the presence of officers they had no authority to arrest Mr Brossart
State v Ritter 472 NW2d 444447 (ND 1991) Mr Brossarts arrest was unlawful and
all evidence gained by means of [that] unlawful arrest is not admissible at trial State v
Wetsch 304 NW2d 6768 (citing State v Mees 272 NW2d 284287 (ND 1978))
More significantly police had no authority to seizeMr Brossart in the first instance
The attached video indisputably shows that Mr Brossart was occupied with work when
officers approached him Mr Brossart candidly courteously and repeatedly told officers
that he was retaining the trespassing cattle Mr Brossart attempted to continue his work but
13
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Nelson County NO
he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
15
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
16
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
17
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
he was prohibited from doing so by the actions of officers The officious and overbearing
conduct ofDep Braathen is indisputable
B The warrantless seizure continued seizure and de facto arrest of Rodney Brossart were unlawful
A seizure occurs when an officer has in some way restrained a citizens liberty by
means of physical force or simple show of authority City of Fargo v Sivertson 1997 ND
204 8571 NW2d 137 When a seizure occurs is an objective legal inquiry for the Court
See State v Leher 2002 ND 171 11 (citing State v Hawley 540 NW2d 390392 (ND
1995raquo Fredericksons reports denote several instances in which Dep Braathen was issuing
commands for Rodney to stay where he was rather than returning to work This conduct
clearly constitutes a seizure Generally police must have a reasonable suspicion to seize
and probable cause to arrest Engstrom v North Dakota Dept ofTransp 2011 ND 235 1
807 NW2d 602 The rule permitting warrantless reasonable suspicion seizures should be
expressly limited to investigation of serious offenses) 4 Wayne R Lafave Search and
Seizure sect 92(c) at 32 (3d edl996) see also United States v Hensley 469 US 221 229
(1985) (stating that it is unclear whether Terry stops to investigate all past crimes however
serious are permitted) The initial seizure was unlawful and the resulting evidenceshy
includingMI Brossarts statements-must be suppressed
Mr Brossart further argues that the seizure quickly became a de facto arrest not
supported by probable cause An arrest occurs when circumstances exist that would cause a
reasonable person to conclude he was under arrest and not free to leave City of Devils
Lake v Grove 2008 ND 155 10 755 NW2d 485 (citing State v Anderson 2006 ND 44
22 710 NW2d 392) An arrest must be supported by probable cause Grove 2008 ND
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155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
16
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
17
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
155 at ~ 11 If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individuals Fourth Amendment interests it may no longer be
justified as an investigative stop and as a full-fledged seizure must be supported by probable
cause Id at ~ 15 The facts of the present case clearly demonstrate the officers complete
unwillingness to recognize Mr Brossarts superior claim of possessory interest in the
trespassing cattle The video clearly shows that officers repeatedly interfered with Mr
Brossarts ability to return to work The unlawful seizure quickly became an unlawful
defacto arrest and then an unlawful warrantless custodial arrest
If the court fails to exclude evidence derived from an improper arrest and the error is
not harmless beyond a reasonable doubt the defendants conviction will be reversed See
City of Wahpeton v Johnson 303 NW2d 565 567 (ND 1981) (citing State v Erdm~
170 NW2d 872 (NDl969) Rule 52(a) NDRCrimP) It is axiomatic that evidence will
not be admissible in a criminal trial when it was seized by means of an unlawful arrest
State v Wahl 450 NW2d 710 714 (ND 1990) (citing LNS v Lopez-Mendoza 468 US
1032 104 SCt 3479 82 LEd2d 778 (1984) United States v Wenzel 485 FSupp 481
(DCMinn1980) State v Wetsch 304 NW2d 67 (ND1981) State v Mees 272 NW2d
284 (ND1978raquo Because Mr Brossart was seized without reasonable suspicion subjected
to a de facto arrest for which probable cause was absent and because Mr Brossart was
unlawfully arrested and the resulting evidence must be suppressed or the charges dismissed
3 Police provoked and used excessive force against Rodney Brossart requiring dismissal of the charges
Dep Braathen was intent on arresting Mr Brossart whether he had authority to do so
or not Any reasonable police officer would recognize the obvious absence of authority to
15
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seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
16
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
seize or inspect the trespassing cattle or to make an arrest for an estray violation involving
cattle that were not estrays Rather than encouraging Mr Anderson to comply with the
statutory procedures required to obtain return of the trespassing cattle Braathen and
Frederickson sought to incite Mr Brossart by officiously inserting themselves into a civil
dispute over which law enforcement had no investigative or other authority Police through
their own actions unlawfully created the circumstances that the State now uses in an effort to
prosecute the Brossarts This provocation is intolerable
North Dakota law clearly prohibits the use of excessive force to make an arrest See
NDCC sect 29-06-10 (A person who is arrested may not be subjected to unnecessary or
unreasonable force nor to any greater restraint than is necessary for the persons detention)
Police may use force to arrest but only if the defendant flees or forcibly resists NDCC
sect 29-06-13 The video and testimony will clearly show that Mr Brossart did not forcibly
resist or flee Instead he repeatedly attempted to assert his lawful right to retain the
trespassing cattle He attempted to return to work He attempted to peacefully terminate
further discussions with police Police were unrelenting threatening arrest threatening that
they would obtain search warrants and wholly refusing to leave Mr Brossart alone When
officers continued their threats Mr Brossart responded by encouraging officers to refrain
from entering upon his property or they would not return Officers continued in their
efforts to compel Mr Brossart to forfeit his constitutional rights permitting officers
warrantless entry onto his property to purportedly inspect the trespassing cattle When Mr
Brossart refused Braathen advised Mr Brossart he was being arrested When Mr Brossart
repeatedly asked why he was being arrested officers responded by repeatedly electrocuting
him with a Taser Mr Brossart neither forcibly resisted nor fled This unnecessary brutal
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excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
excessive and unconstitutional use of force further compounds the injury reSUlting from the
unlawful arrest
Mr Brossart agrees the reasonableness of a persons response to an unlawful arrest is
usually a question of fact for the jury See eg State v Falconer 2007 ND 89 ~ 16 732
NW2d 70 State v Cox 532 NW2d 384387 (ND 1995) and State v Ritter 472 NW2d
444452 (ND 1991) But determination of the unlawful arrest is a question of law for the
Courts determination Ritter 472 NW2d at 453 (Levine J concurring) Moreover
courts retain the power to act upon evidence of flagrant police misconduct such as
intentional harassment or the use of excessive force Id at 452 (citation omitted) Courts
will remedy an unlawful arrest or detention by dismissal of the charges in instances when
an accused avoids belligerent and forceful reactions to overbearing police conduct Id
(citing City of Bismarck v Schoppert 460 NW2d 808 (ND 1991) In many instances
judicial remedies for unlawful police action remain appropriate Id This is one of those
instances The Court should dismiss the charges
4 The de facto arrest of Jacob Brossart was unlawful
As officers were electrocuting Rodney Brossart who was located in standing
water Jacob Brossart approached to provide assistance to his father Police responded by
taking Jacob into custody handcuffing him and escorting him away from his father even
though Jacobs actions did not threaten provoke harm or interfere Consistent with City
of Devils Lake v Grove 2008 ND 155 755 NW2d 485 the custodial de facto arrest of
Jacob Brossart was unlawful Police were required to utilize the least intrusive means
17
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reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
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Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
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FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
reasonably available rather than resorting to physical force use of handcuffs and
forcibly escorting Jacob Brossart away from his father Id at ~ 20
5 The arrest of Abbey Brossart is embellished and underscores unreasonable law enforcement conduct
After Rodney Brossart was arrested his daughter Abbey Brossart approached Dep
Braathen and inquired why the deputy was hurting her father After receiving a flippant
response from Dep Braathan the reports suggest Abbey pushed or lightly hit Braathans
arm No reasonable personmiddot would claim that physical injury or pain resulted
Notwithstanding Braathen arrested Abbey Brossart claiming she committed felony assault
This embellished charge underscores the patently unreasonable manner in which the State
and Braathen in particular has exaggerated and compounded the injuries inflicted upon the
Brossarts
6 The warrantless entry onto the Brossart property requires suppression of the resulting evidence
Officers claim Alex Thomas and Jacob Brossart committed terrorizing by pointing
firearms at them while they were attempting to serve a search warrant While the
Brossarts adamantly deny the allegations police observations derived from this incident are
inadmissible
There existed no lawful prior Fourth Amendment justification for the officers
presence within the Brossart farmyard Police knew the trespassing cattle were not in the
Brossart yard but were at the missile site located at least one-half mile away from the
Brossart farm In fact the existing warrant specifically described the missile site and had
already been served when officers officiously trespassed onto the Brossart farm The farm
I was conspicuously posted against trespass Rodney and Abbey were in jail There was no
i 18 i
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Nelson County ND I
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
19
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The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
Filedmiddot Clerk Of District Court 4102012300 37 PM
Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
21
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
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Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
basis to believe any type of criminal activity was taking place within the farmyardmiddot The
absence of probable cause and prior justification prohibited police entry onto the property
and requires suppression of evidence and observations thereon See~ Texas v Brown
460 US 730 738 and n 4 741-42 (1983) Because police were not lawfully in a position
to observe the claimed illegal activity their observations and the resulting evidence must be
suppressed
7 The warrantless use of unmanned surveillance aircraft and the use of commandos to infIltrate the Brossart ranch were unlawful
After Rodney and Abbey Brossart were arrested and placed in custody police sought
a warrant to obtain the trespassing cattle Police also dispatched unmanned aerial
surveillance to spy on the Brossart family and to collect intelligence data The unmanned
aircraft was dispatched without judicial approval or a warrant The unmanned aircraft was
not visible or detectable by ordinary observation Armed with the intelligence data from the
unmanned arrcraft and a search warrant commando-styled police officers infiltrated the
Brossart ranch searching all buildings tree rows shelter belts vehicles and equipment
These unrestricted tactics were unreasonable
The use of military-like aircraft in domestic law enforcement is a relatively new
concept subject to substantial criticism See Joseph J Vacek Big Brother Will Soon Be
Watching--Or Will He Constitutional Regulatory and Operational Issues Surrounding the
Use of Unmanned Aerial Vehicles in Law Enforcement 85 ND L Rev 673 (2010) In
Kyllo v United States 533 US 27 29 (2001) the United States Supreme Court held that
obtaining information by sense enhancing technology not available for general public will be
subject to constitutional protections against unreasonable searches and seizures
19
Filed - Clerk Of District Court 41101201230037 PM
Nelson County NO
The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
Filedmiddot Clerk Of District Court 4102012300 37 PM
Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
21
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Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
Filed - Clerk Of District Court 4102012 30037 PM
Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
The Fourth Amendment of the United States Constitutionmade applicable to the
states by the Fourteenth Amendment as well as Article I Section 8 of the North Dakota
Constitution prohibit unreasonable searches and seizures State v Wanzek 1999 ND 163 ~
7598 NW2d 811(citing State v Lanctot 1998 ND 216 ~ 5587 NW2d 568) Suppression
of evidence is warranted based on the unreasonable manner method and means employed
by the state Part of the reasonableness inquiry of the Fourth Amendment and Article I
Section 8 is the manner method and means used in obtaining evidence These provisions
bar intrusions which are not justified in the circumstances or which are made in an
improper manner Schmerber v California 384 US 757 768 (1966) Stated differently
even in instances in which searches are authorized by a proper search warrant if the warrant
is executed in an unreasonable manner the resulting evidence will be suppressed In
evaluating the manner method and means the Court must consider the totality of the
circumstances In this case as outlined above law enforcement efforts-from beginning to
end-were wholly uncontrolled and unreasonable See Brinegar v United States 338 US
160 18069 SCt 1302 131393 LEd 1879 (1949) (Jackson J dissenting) (Uncontrolled
search and seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government)
8 Outrageous police conduct and the combined injury requires dismissal of all charges
Law enforcement induced enticed incited and provoked the Brossarts into acts
which law enforcement now claim constituted one or more offenses Deputy Braathen and
Insp Frederickson created the circumstances they now claim supported arrest ofRodney and
Abbey Brossart In simple terms the Brossarts were the victims of intolerable police
20
Filedmiddot Clerk Of District Court 4102012300 37 PM
Nelson County ND
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
21
Filed - Clerk Of District Court 41101201230037 PM
Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
Filed - Clerk Of District Court 4102012 30037 PM
Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
conduct In State v Kummer 481 NW2d 437 (ND 1992) the North Dakota Supreme
Court addressed the appropriate remedy for intolerable law enforcement conduct
Here police relied upon inapplicable statutes Police unlawfully arrested They
stretched the rules prompted responses and caused the resulting conduct In Kummer the
court stated Subversion of statutes rules or regulations by law enforcement officers in
order to induce a criminal violation cannot be sanctioned Kummer 481 NW2d at 443
(citation omitted) The manufacture or creation of a crime by law enforcement authorities
cannot be tolerated Id at 444 (quoting 1 Working Papers of the National Commission on
Reform ofFederal Criminal Laws Comment on Entrapment Section 702 at p 314 (1970))
A concurring opinion in Kummer makes the point I believe we should confront the
issue directly and declare that as a matter of public policy we will not sustain a conviction
obtained by intolerable conduct on the part of law enforcement agents Kummer 481
NW2d at 445 (VandeWalle J concurring) (citing Hampton v United States 425 US
48496 SCt 164648 LEd2d 113 (1976) and Evans v State 550 P2d 830 (Alaska 1976)
for the proposition that outrageous police conduct may bar conviction as a matter of law)
Whether the governments conduct is so outrageous that it bars prosecution is a question of
law fully reviewable on appeal State v Hoverson 2006 ND 49 7 710 NW2d 890
(citation omitted) The Brossarts respectfully ask this Court to affirmatively answer the
question oflaw at the outset of this case before further damage results
9 Alternatively the Court should suppress all evidence subsequent to the seizure ofRodney Brossart
An invalid arrest or an unlawful detention is ordinarily not grounds for dismissing a
complaint or voiding a subsequent conviction Gerstein v Pugh 420 US 103 (1975) State
21
Filed - Clerk Of District Court 41101201230037 PM
Nelson County ND
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
Filed - Clerk Of District Court 4102012 30037 PM
Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
v Biby 336 NW2d 460 462 (ND 1995) State v Mees 272 NW2d 284 287 (ND
1978) State v Hager 271 NW2d 476 480 (ND 1978) As outlined above the Brossarts
argue this is the extraordinary case warranting dismissal of the charges As an alternative
all evidence resulting from the illegal police conduct must be suppressed Although the rule
of exclusion is neither intended nor is it able to cure the invasion of a defendants rights
which he has already suffered the rule of exclusion serves as a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect
Stone v Powell 428 US 465 540 (White 1 dissenting) United States v Calandriib 414
US 338 348 (1974) The constitutional prohibitions against unlawful police conduct
impact us all-the guilty and innocent alike When police willfully disregard the
Constitutions of the United States and the State of North Dakota and when police willfully
disregard the clear mandates of our highest courts the adage that police action was close
enough for government work is simply not enough If remedial dismissal is not granted
the only appropriate remedy is the judicially created remedy of deterrence through exclusion
of evidence including any and all statements and suppression of the resulting evidence The
absence of any remaining evidence is independently sufficient to warrant dismissal of the
present charges
CONCLUSION
For the foregoing reasons the Brossarts respectfully requests that the Court enter an
Order ofDismissal
22
Filed - Clerk Of District Court 4102012 30037 PM
Nelson County ND
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
to Dated this ~ ~fApril 2012 ~0_1_2_____--- shyBy ~ ~
Bruce D QUick (03510) Ross Brandborg (06029) Mark A Friese (05646) BRANDBORG amp GAST VOGEL LAW FIRM 35 4th Street North Suite 201 218 NP Avenue Fargo ND 58102 POBox 1389 Telephone 7012370099 Fargo ND 58107-1389 Telephone 7012376983 Facsimile 7012370847 ATTORNEYS FOR ABBY ALEX ATTORNEYS FOR RODNEY JACOB mOMAS and SUSAN BROSSART BROSSART
13663742
23
Filed Clerk Of Dislrict Court 4110201230037 PM
Nelson County ND
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
FILED In DIstrlet Court
Nelson County NO
IN DISTRICT COURT NELSON COUNTY NORTH DAKOTA APR 2 3 2012
State ofNorth Dakota
Plaintiff
Ruth Stevens Clerk By__----shy
Deputy STATES RESPONSE TO DEFENDANTS
COMBINED MOTION TO DISMISS
v
Rodney Brossart
Defendant
File Nos 32-20l1-CR-00049 00071
State of North Dakota
v
Susan Brossart
File No 32-2011-CR-00074
State ofNorth Dakota
v
Abby Brossart
File Nos 32-2011-CR-00050 00076
State ofNorth Dakota
v
AJex Brossart
File No 32-2011-CR-00046
1
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
State of North Dakota
v File No 32-20l1-CR-00048
Thomas Brossart
State ofNorth Dakotat
v File No 32-2011-CR-00047
Jacob Brossart
The State of North Dakota replies to the Defendants brief in support of Defendants
combined Motion to Dismiss several criminal charges which have been filed against the Brossart
defendants t as follows As stated by the Defendants in their brief the Brossarts are a close-knit
family that does not seek to socialize with other people This is borne out by the fact that eleven
neighboring landowners have petitioned the Nelson County District Court for and have received
an order to survey disputed property lines between the Petitioners lands and Respondent Rodney
Brossarts land (Civil Case No 32-1O-C-29 Nelson County ND District Court)
The events leading to the arrest of Rodney Brossart began when his neighbor Chris
Anderson began looking for three cow-calf pairs that had wandered from his pasture Mr
Anderson picked up the trail of the cattle on the township road adjoining his property and
followed the tracks of the cattle to a point where what appeared to be tracks from a four-wheeler
ATV and a three-wheeler A TV joined the cattle tracks These tracks went off the road and
continued across the field to a locked and gated abandoned missile site that is rented by Rodney
Brossart Mr Andersons identified the cattle as those that had strayed from his pasture
2
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
At no time did Mr Brossart or any member of his family notify Mr Anderson that his
stray cattle had wandered onto Brossart land and were locked in the missile site
Mr Anderson made contact with Mr Brossart at the Brossart residence and said he
could get a trailer and get the cattle out of the missile site right away Mr Brossart responded he
could buy the cattle back Not wanting to confront Mr Brossart alone Mr Anderson left the area
and contacted the Nelson County Sheriffs Office
Nelson County Sergeant Eric Braathen and North Dakota Stockmens Association Field
Agent Fred Frederikson then began driving to Mr Brossarts farm to seek a consensual return of
the cattle to Mr Anderson They located Rodney Brossart pumping water across a township road
and Sergeant Braathen introduced Mr Frederikson to Mr Brossart Agent Frederikson said he
understood Mr Brossart had some stray cattle on his farm Mr Brossart said Is that what they
are Mr Frederikson said 1 guess theyre your neighbors cattle Mr Brossart replied Oh
are they I havent had any proof yet Mr Frederikson informed Mr Brossart that he had brand
papers for the cattle that had strayed on Mr Brossarts land and asked to go look at them Mr
Brossart then said If you step foot on that property youre not waJking away Mr Brossart
said he was going to finish what he was doing and Sergeant Braathen said No were going to
do this now Mr Brossart went back to the tractor and Sergeant Braathen told him if he did not
cooperate he would be arrested Mr Brossart said For what Show me the writ Show me the
writ Sergeant Braathen then told Mr Brossart he was under arrest Mr Brossart resisted being
arrested and was then arrested by Sergeant Braathen who used a Taser multiple times on Mr
Brossart when Mr Brossart refused to comply
3
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
The defendant claims the officers had no basis to arrest Mr Brossart for violating the
livestock estray law Chapter 36-13 NDCC Estrays arguing that the definition ofestray in
Chapter 36-22 NDCC Estray Inspection controls and applies to Chapter 36-13 NDCC Estrays
Chapter 36-22 NDCC Estray Inspection was enacted in 1943 and provides for the
establishment of the North Dakota Stockmens Association to assure that cattle will not be sold
at auction in the state of North Dakota without proof of ownership In the Estray Inspection
chapter estray is defined as Any marked or branded cattle horse or mule found at any
livestock market to which a shipper cannot produce title or other satisfactory evidence of
ownership is considered to be an estray (Section 36-22-01 NDCC) (Emphasis added)
Chapter 36-13 NDCC Estrays was enacted initially in 1890 and does not contain a
definition of estray The 1943 definition ofestray in Chapter 36-22 NDCC cannot possibly
apply to the 1890 statute Section 36-13-01 NDCC Estrays provides A person may take
possession ofan estray when it is on property that the person owns or controls provided the
person does not know who owns the estray As soon as practicable the person shall examine the
estray to determine the presence and identity of any brand and any other marks or scars that may
identify the estray The person shall notify the sheriff of the county in which the estray was
found or the chiefbrand inspector Once notified the sheriff or the chief brand inspector shall
record the date and time of the notification and aU information obtained from the person which
may be helpful in determining ownership ofthe estray The chief brand inspector shall direct a
brand inspector to examine the estray for marks and brands
Any person that takes possession ofan estray and willfully fails to comply with the
chapter is guilty ofa c1ass B misdemeanor Section 36-13()8 NDCC
4
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
In Campbell v Hamilton 172 NW 810 (ND 1919) the North Dakota Supreme Court
defined estray as a wandering animal whose owner is unknown - an animal that has strayed
away and lost itself Under the estray statute a person has no right to impound an animal as an
estray unless it is in truth and in fact an estray and when a person does take up an estray he
must comply strictly with all of the provisions of the statute
As the video clearly shows when Mr Brossart was asked about the cattle by Mr
Frederikson Mr Brossart denied knowing they were his neighbors cattle and refused to allow
Mr Frederikson to view the cattle to confinn brand papers he had on the cattle No notice was
given to the sheriff or chiefbrand inspector that the cattle had been found From the point of
view of the officers Braathen and Frederikson Mr Brossart committed a class B misdemeanor
violation of the estray law in their presence and he was arrested for violating the estray law
The defense claims in its brief that Mr Brossart followed the law on trespass of livestock
when he demanded that Chris Anderson buy his cattle back from Mr Brossart The defense
cannot credibly claim that cattle herded off ofa township road and into a gated and locked
missile site on Brossart-controlled property were trespassing livestock
Mr Brossart failed to follow the law on trespass by demanding payment for the
trespassing cattle The remedy is not that Mr Anderson must purchase the animals back from
Mr Brossart The remedy is that Mr Brossart may ultimately recover from Mr Anderson any
damages caused by the trespassing cattle Section 36-11-1 O( I) NDCC
Mr Brossart cannot use his misinterpretation of the trespass law to avoid following the
statutory requirements of the law on estrays
5
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
The defense argues that because the cattle were trespassing the theft charge against Mr
Brossart is improvident This case does not involve trespassing livestock It involves livestock
that were not owned by Mr Brossart being herded off a township road and into a fenced-in site
controlled by Mr Brossart The owner of the livestock offered to remove them from the Brossart
property and Mr Brossart said he could buy them from Mr Brossart
Section 121-23-02 NDCC states A person is gui1ty oftheft ifhe 1 Knowingly takes
or exercises unauthorized control over or makes an unauthorized transfer ofan interest in the
property ofanother with intent to deprive the owner thereof Mr Brossart had control of the
cattle and claimed ownership of Mr Andersons property This constitutes an unauthorized
transfer of Mr Andersons interest in the cattle His refusal to return the cattle without payment
ofthe full value of the cattle is a clear indication that Mr Brossart intended to deprive Mr
Anderson ofhis ownership of the cattle
The defense next argues that Mr Brossart was merely exercising his freedom of speech
rights when he told Sergeant Braathen and Mr Frederikson that if they set foot on his property
they would not be walking away and that those words did not convey a threat of harm The
video clearly demonstrates this was not an offhand comment and that the officers took it as a
threat Mr Frederikson told Mr Brossart not to make threats and Mr Brossart yelled that
Sergeant Braathen had to stop making threats
In Siale v Zeno 490 NW2d 707 (ND 1992) the Court at p 710 citing Siale v Hass
268 NW2d 456 stated the determination of whether particular words constitute a threat is a
question of fact and citing Stale v Howe 247 NW2d 647654 (ND 1976) also at p 710
stated
6
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
No precise words are necessary to convey a threat It may be bluntly spoken or done by innuendo or suggestion A threat often takes its meaning from the circumstances in which it is spoken and words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited [Citations omitted]
Because the detennination of whether particular words constitute a threat is a question of
fact this determination is to be left for the jury
The defense contends excessive force was used by Sergeant Braathen in effecting the
arrest of Rodney Brossart Braathen used a Taser to assist in effecting the arrest of Mr Brossart
The audio portion ofthe video submitted by the defense as an exhibit to their brief clearly
demonstrates that the Taser was used only after Mr Brossart refused to cooperate when he was
told he was under arrest Sergeant Braathen will testify that he tased Mr Brossart at this time and
told him to get down He will testify that Mr Brossart advanced on him and was tased again
The testimony will reveal that the Taser was used only after Mr Brossart was warned it would be
used and was used each time he continued to resist In the midst ofresisting arrest Mr Brossart
demanded the officers find his phone and eye glasses He had not yet been cuffed He resisted
being handcuffed and was tased again The only force that was used was that which was
sufficient to effect the arrest and Mr Brossart was warned each time before being tased As the
defense stated in its brief the reasonableness ofa persons response to an unlawful arrest is
usuaJly a question of fact for the jury
The North Dakota Supreme Court visited these issues with Rodney Brossart in State v
Brossart 729 NW2d 137 (ND 2007) In that case Rodney Brossart was convicted in the
Nelson County District Court of preventing arrest or discharge of other duties and he appealed
arguing the Court erred in finding him guilty of the charge and that he had the right to resist
7
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
arrest under Section 121-05-03(1) NDCC Officer Eric Braathen was also involved in this case
Id At 138
[ 11) When viewing the evidence and all reasonable inferences in a light most favorable to the
verdict we conclude substantial evidence supports Brossarts conviction for violating NDCC sect
121-08-02( I) However our inquiry does not end with that conclusion because Brossart also
argues he had the right under NDCC sect 121-05-03(1) to resist being handcuffed
[ 12) Brossart claims he was within his legal rights to resist being handcuffed because as a
matter oflaw the deputies used excessive force to subdue him North Dakota law allows a
person to resist a deputys performance of duty when excessive force is used The statute
provides A person is not justified in using force for the purpose of resisting arrest execution of
process or other performance ofduty by a public servant under color of law but excessive force
may be resisted NDCC sect 121-05-03(1)
[ 13] In Ritter this Court examined the legislative history and the purposes ofNDCC sect
121-05-03(I) and held a defendants forceful resistance to an arrest under color of law is not
legally justified unless excessive force is used by the officers Ritter 472 NW2d 444 We
explained
We believe that individual violence cannot replace the rule oflaw Forceful resistance to an
unlawful search or seizure is no longer automatically excused as a matter of law by exclusion of
related evidence or by judicial dismissal [T]he criminal statutes still recognize justification
defenses as factual remedies for official misconduct These defenses do not depend on judicial
suppression of evidence or dismissal of charges Rather they depend upon full presentation of
8
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
the facts to the trier of fact usually the jury for determination of the independent nature of the
charged offense Official misconduct is a justification defense to a charge of resisting arrest
[d at 450-53 (Emphasis added)
[ 14] We held subsequently in DuPaul and Cox the proper remedy for addressing claims of
unlawful police conduct was allowing the defendant to raise the issue to the jury and offer his
resistance as a justification defense to the preventing-arrest charge Siale v DuPaul 509 NW2d
266271 (ND 1993) Cox 532 NW2d at 388 [d at 140 141
Clearly the Court has held the issue of excessive force is for the trier of fact and not a
subject for a pretrial determination
The defense next claims the officers mishandled the removal of Jacob Brossart from the
scene of the arrest of Rodney Brossart Officers testimony will show Rodney Brossart yelled at
Jacob Brossart to go get that and Jacob approached the Brossart pickUp truck at the arrest
scene Inspector Frederikson intervened and prevented his approach to the pickup which
contained two rifles on the front seat Jacob Brossart was then handcuffed and placed in a patrol
vehicle He was not charged with any offense relating to the arrest of Rodney Brossart and the
cuffs were removed after Rodney Brossart was arrested and placed in a patrol vehicle In the
chaotic situation involving the arrest of Rodney Brossart cuffing and sequestering Jacob
Brossart who was coming to aid his father at his fathers demand was the least intrusive means
available to the officers at the time
The defense next claims the arrest ofAbby Brossart is embellished The video exhibit
clearly shows Abby Brossart exited a vehicle with other Brossart family members approached
9
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Sergeant Braathen and struck his right arm with her left arm The officer will testify that the
blow was of sufficient force to push his arm back and down Whether the officer suffered pain as
a result ofbeing struck on his arm is a question of fact for the jury
The defense next claims the officers entry onto the Brossart farmstead requires
suppression ofresulting evidence Fred Frederikson will testify that at the scene of the arrest of
Rodney Brossart Thomas Brossart said his Dad (Rodney) demanded a search warrant before
Fred Frederikson could view the cattle locked up on Brossart-controlled land Frederikson then
told Thomas Brossart he would get a search warrant that afternoon
That afternoon Frederikson returned with a search warrant and he and Nelson County
Deputy Sheriff Keith Olson met and parked near the missile site containing the cattle Thomas
Brossart and Alex Brossart then arrived in a pickup and said This is private land I do not agree
to this sale Thomas had a rifle in an open case next to him Alex Brossart said he had read on
the internet that the Brossarts were entitled to $15000 for each trespassing animal Frederikson
told Alex and Thomas he was in possession of a search warrant and they drove away
Nelson County SheriffKeUy Janke and Sergeant Braathen then arrived at Frederiksons
location Frederikson described the encounter with Thomas and Alex Brossart and all of the
officers went to the Brossart farmstead where Sheriff Janke intended to serve the search warrant
and to be in a position to prevent the three sons from interfering with the retrieval of the cattle
Sheriff Janke and Sergeant Braathen approached the Brossart residence on foot and were
confronted by Alex Brossart Thomas Brossart and Jacob Brossart who rushed at them and
pointed firearms at them The officers retreated to a position of safety and a standoff ensued
10
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Under Rule 41(d) NDRCrimP an officer executing a search warrant must prepare and
verify an inventory ofany property seized in the presence of the applicant for the warrant and the
person from whom or from whose premises the property was taken Ifeither one is not present
the officer must prepare and verify the inventory in front of at least one other credible person An
officer taking property under the warrant must (A) give a copy of the warrant and a receipt for
the property taken to the person from whom or from whose premises the property was taken or
(B) leave a copy of the warrant and receipt at the place from which the officer took the
property NDRCrimP 41(d)(2)
The officers had received demands from the Brossarts for a search warrant and went to
the farmstead to show the Brossarts they had a search warrant and to serve it They would then
have at least one adult member of the family present at the inventory and could then give a copy
of the search warrant and a receipt for the property taken to the person from whom the property
was taken The officers also had the option of leaving a copy of the warrant and receipt at the
place from which the officer took the property In this case they exercised the option of
attempting to directly present the warrant to the three Brossart adult sons only to be confronted
by Thomas Brossart Alex Brossart and Jacob Brossart threatening them with firearms
The Defendants claim the Brossart premises were posted against trespass that the
officers had no right to be on the premises and that evidence of the Brossarts confrontation of
the officers with firearms must be suppressed
Even asswning proper posting against trespass the North Dakota trespass statute Section
121-22-03(5) NDCC provides This section does not apply to a peace officer in the course of
discharging the peace officers official duties
11
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Defendants complain of the use of unmanned surveillance aircraft claiming some
unspecified hann resulted Unmanned surveillance aircraft were not in use prior to or at the time
Rodney Brossart is alleged to have committed the crimes with which he is charged violation of
the estray law resisting arrest criminal mischief theft ofproperty and terrorizing
Unmanned surveillance aircraft were not in use prior to or at the time Abby Brossart is
alleged to have committed simple assault nor prior to or at the time Alex Brossart Thomas
Brossart and Jacob Brossart are alleged to have committed the offenses of terrorizing by
pointing fireanns at law enforcement officers
The use of unmanned surveillance aircraft had no bearing on the issuance and execution
of a June 24 2011 search warrant for the fireanns alleged to have been used by Alex Brossart
Thomas Brossart and Jacob Brossart on the terrorizing charges This warrant allowed for the
search ofoutbuildings as well as the residence and was executed by multiple law enforcement
agencies
The use of unmanned surveillance aircraft is a non-issue in this case because they were
not used in any investigative manner to determine if a crime had been committed There is
furthermore no existing case law that bars their use in investigating crimes
In summary the issues raised by the defense are all issues of fact to be determined by a
jury not subject to dismissal prior to being heard by a fact finder Whether arresting officers had
reasonable grounds to arrest Rodney Brossart for violating the estray law for his actions in their
presence on Rodney Brossarts resisting arrest charge whether excessive force was used in
effecting his arrest whether Rodney Brossart was justified in resisting arrest whether Rodney
12
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13
Brossart committed theft of the cattle whether which is not addressed in the Defendants brief
Rodney Brossart committed criminal mischief in the patrol vehicle whether Abby Brossarts
physical contact with the officer caused physical pain to the officer whether which is not
addressed in the brief Susan Brossart made statements that hindered law officers in an
investigation and whether Thomas Brossart Alex Brossart and Jacob Brossart committed the
offenses of terrorizing For all of these reasons the State requests the Defendants Motion for
Dismissal be denied in its entirety
Dated this April 22 2012
DougI G Mbeck0325) == Nelson County States Attorney PO Box 533 Lakota ND 58344 Telephone 701-247-2138 Attorney for the Plaintiff
13