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DIVIDED SUPREME COURT UPHOLDS CAR SEARCH FOR MARIJUANA

BISMARCK, N.D.  - Authorities who stopped a man's car twice in less than an hour to check its illegally tinted windows were justified in searching it for marijuana, a divided North Dakota Supreme Court concluded. 

The court's five justices split 3-2 in their ruling Tuesday, with Justice Mary Muehlen Maring and Chief Justice Gerald VandeWalle arguing that police conduct in the case "bordered on harassment."

The decision upholds Brent Bartelson's guilty plea to a felony charge of possession of marijuana with intent to deliver, which carries a maximum sentence of 10 years in prison and a $10,000 fine. 

Bartelson had pleaded guilty on the condition that he be allowed to appeal a judge's ruling that marijuana seized from his car could be used as evidence against him. 

Court records say Bartelson was driving north on U.S.  Highway 83 on Feb.  14, 2003, when a Highway Patrol trooper, Patrick Hudson, stopped Bartelson's black sedan near Washburn because his car's windows had a darker tint that state law allows. 

A few minutes after Bartelson resumed driving, an anonymous caller told a Ward County sheriff's office dispatcher that a recently stopped vehicle held a large amount of marijuana.  A state Bureau of Criminal Investigation agent, Mike Marchus, connected the tip to Bartelson's car, and asked for help in finding it. 

Forty-two minutes after the first stop, another Highway Patrol trooper, Kevin Huston, pulled over Bartelson's car for the same tinted-windows violation.  Marchus, Hudson and three other officers joined the stop, court records say. 

Authorities checked the driver's license of a passenger in Bartelson's car, Lance Cotton, and discovered it was suspended.  Cotton was arrested, Bartelson's car searched and the marijuana discovered. 

Bartelson's lawyer, Eric Baumann, argued the search was illegal because it was unreasonable for the police to pull over Bartelson's car twice in less than an hour for the same reason.  Huston knew of the earlier stop, yet pulled Bartelson over on the same pretext, the attorney said. 

Justice Carol Ronning Kapsner, who wrote the court's majority opinion, said it was unclear what Huston knew about the earlier stop. 

"An officer's probable cause ( to stop a vehicle ) does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation," Kapsner wrote.  "It is not unreasonable for different law enforcement officers to stop a vehicle twice for the same tinted-window infraction in a short period of time."

The traffic stop was legal, and the search was valid, because of Cotton's arrest before the search took place, Kapsner wrote.  Justices Daniel Crothers and Dale Sandstrom agreed. 

Maring wrote a dissenting opinion, signed by VandeWalle, in which she argued the second traffic stop violated Bartelson's constitutional right to be protected from unreasonable searches. 

Marchus testified that he had given Huston a description of Bartelson's car and its license plate number, and told the trooper that Hudson had stopped it before for a tinted-window violation, Maring wrote. 

"The law enforcement conduct bordered on harassment," Maring wrote.  "Law enforcement's knowing stop of Bartelson for the same equipment violation 42 minutes after the initial stop is flagrant misconduct under the Fourth Amendment." The Fourth Amendment prohibits unreasonable police searches and seizures. 

The high court initially split 2-2 on the case, which was first argued in April, shortly after former Justice William Neumann resigned.  It was reargued in September, after Neumann's successor, Crothers, joined the high court, and he provided the third vote needed for a majority.