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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 STATE'S AITORNEY, 320 3
RD
STREET WEST, P.O. BOX 533, LAKOTA, ND, 58344-0533, ATTORNEY FOR
THE PLAINTIFF.
PLEASE TAKE NOTICE THAT based on N.D.R.Crim.P. 12 and N.D.R.Ct. 3.2, 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 of Motion
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 Defendant's Motion.
PLEASE TAKE NOTICE TIIAT N.D.R.et. 3.2 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, 2012;·
By: __~ __~ ~ ________
Bruce D. Quic (#03510)
Mark A. Friese (#05646)
VOGEL LAW FIRM
218 NP Avenue
PO Box 1389
Fargo, ND 58107-1389
Telephone: 701.237.6983
Facsimile: 701.237.0847
ATTORNEYS FOR RODNEY
BROSSART
Dated this /0 da of April, "2012.
By: ________~ = - ______ _
Ross Brandborg (#06029)
BRANDBORG & GAST
35 4th Street North, Suite 201
Fargo, ND 58102
Telephone: 701.237.0099
ATTORNEYS FOR ABBY, ALEX,
JACOB, THOMAS, and SUSAN
BROSSART
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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
cow/calf 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 N.D.C.C.
§ 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 Sheriff's 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 Stockman's
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 l09
th
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
of water. Horrified at the ongoing torture, Jacob attempted to run to his father. Frederickson
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physically blocked Jacob's rescue effort, ratcheting' Jacob's arm behind his 'back, and
handcuffing him. Frederickson directed Jacob to Braathan's 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 deputy's 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 State's
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 the.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-
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 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 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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J
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 cow.,calf 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
This.is 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, Ch.36-13, N.D.C.C., however, does not .apply. Instead, Mr.
Brossart's lawful possession of the cattle was-as he insisted-govemed by N.D.C.C. § 36­
11-10, which provides:
§ 36-11-10. Trespassing livestock may be distrained--Notice to owner-­
Security 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 w i t h o ~ 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 person's 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 attorney's 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 N.D.C.C. § 36-11-19 (noting persons who take livestock
lawfully held under the trespassing N.D.C.C. § 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 N.D.C.C. § 36-13-01. Contrary to
law enforcement claims, estray law is inapplicable because the trespassing animals were not
estrays. See N.D.C.C. § 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 § 46 (2012); see also. Campbell v.
Hamilton, 172 N.W. 810 (N.D. 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." N.D.C.C. § 1-01-06. The
present trespassing animals were not estrays. See N.D.C.C. §§ 36-22-01 (providing the
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statutory defmition of estray); 36..;13-01 (permitting taking possession of-an estray "provided
the person does not know who owns the estray"); Campbell, 172 N.W. at 810.
The rights and remedies established for trespassing animals versus eStraYs are
significant and long-recognized. See e.g., Martin v. Ludowese, 184 N.W. 575 (N.D. 1921).
Under North Dakota law, specific statutes control general statutes. City of Bismarck v.
Fettig, 1999 ND 193, ~ 14, 601 N.W.2d 247 (citing N.D.C.C. § 1-02-07). Section 36-11-10,
N.D.C.C., 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." N.D.C.C. § 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 N.D.C.C. § 36-11-10.
1
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 enforcement's tortured application ofNorth Dakota law to
conclude the trespassing animals were estrays, Mr. Anderson's actual knowledge of the location
ofthe cattle satisfied any notice obligation the Brossarts would have had. See LaPorte v. Van
Buskirk, 217 N.W. 173, 176 (N.D. 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 N.D.C.C. § 36­
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 N.W.2d 442, 447 (citing In re Estate of
Samuelson, 2008 ND 190, ~ 11, 757 N.W.2d 44). Because N.D.C.C. § 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 U.S. 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 U.S. 357, 374 (1927) (Brandeis, 1.,
concurring).
Rodney Brossart's statement was not a "true threat," and prosecution for that
statement violates the First Amendment. See Virginia v. Black, 538 U.S. 343 (2003)
(holding only ''true threats" are denied First Amendment protection); see also, City of
Bismarck v. SchoIll'ert. 469 N.W.2d 808, 814 (N.D. 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 U.S. at 359 .
(citation omitted). Mr. Brossart's 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 U.S 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 U.S. 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 U.S. 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 N.W.2d 789, 795
(N.D. 1989); City ofBismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991).
In Terminiello v. Chicago, 337 U.S. 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. Brossart's
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 N.D.C.C. § 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. The'warrantless 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 N.D.C.C. § 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 officer's erroneous belief that Mr. Brossart
committed an offense does not obviate the unlawful arrest. .see Colling v. Hjelle, 125 N.W.
453, 457 (N.D. 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. Anderson's 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 Anderson's actual knowledge of
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the location of the cattle. . See La Porte v. Van Buskirk, 217 N.W. 173, 176 (N.D. 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
N.D.C.C. § 29-06-15, a law enforcement officer may arrest for felonies based on probable
cause, or for misdemeanors committed or attempted in the officer's presence. See also,
N.D.C.C. § 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 inspector's
presence"). Because no offense was committed, law enforcement lacked authority to arrest.
Colling v. Hjelle, 125 N.W. 453, 458 (N.D. 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 N.W.2d 444,447 (N.D. 1991). Mr. Brossart's arrest was unlawful, and
all evidence "gained by means of [that] unlawful arrest is not admissible at trial." State v.
Wetsch, 304 N.W.2d 67,68 (citing State v. Mees, 272 N.W.2d 284,287 (N.D. 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 of Dep. 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 citizen's liberty by
means of physical force or simple show of authority. City of Fargo v. Sivertson, 1997 ND
204, , 8,571 N.W.2d 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 N.W.2d 390, 392 (N.D.
1995)). Frederickson's 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. W.2d 602. The rule pennitting warrantless reasonable suspicion seizures "should be
expressly limited to investigation of serious offenses") 4 Wayne R. LaFave, Search and
Seizure § 9.2(c), at 32 (3d ed.1996); see also, United States v. Hensley, 469 U.S. 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. Brossart's 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 N.W.2d 485 (citing State v. Anderson. 2006 ND 44,
~ 22, 710 N.W.2d 392). "An arrest must be supported by probable cause." Grove, 2008 ND
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155 at , 1L· "If an investigative detention lasts too long or its manner of execution
unreasonably infringes an individual's 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. Brossart's superior claim of possessory interest in the
trespassing cattle. The video clearly shows that officers repeatedly interfered with Mr.
Brossart's 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 defendant's conviction will be reversed. See,
City of Wahpeton v. Johnson, 303 N.W.2d 565, 567 (N.D. 1981) (citing State v. Erdman,
170 N.W.2d 872 (N.D.1969); 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 N.W.2d 710, 714 (N.D. 1990) (citing I.N.S. v. Lopez-Mendoza, 468 U.S.
1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); United States v. Wenzel. 485 F.Supp. 481
(D.C.Minn.1980); State v. Wetsch. 304 N.W.2d 67 (N.D.1981); State v. Mees. 272 N.W.2d
284 (N.D.1978)). 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
N.D.C.C. § 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 person's detention.").
Police may use force to arrest, but only if the defendant "flees or forcibly resists." N.D.C.C.
§ 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 person's response to an unlawful arrest is
usually a question of fact for the jury. See e.g., State v. Falconer, 2007 ND 89, , 16, 732
N.W.2d 70; State v. Cox, 532 N.W.2d 384,387 (N.D. 1995); and State v. Ritter, 472 N.W.2d
444,452 (N.D. 1991). But determination of the unlawful arrest is a question oflaw for the
Court's determination. Ritter, 472 N.W.2d 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 N.W.2d 808 (N.D. 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 Jacob's actions did not threaten, provoke, harm, or interfere. Consistent with City
of Devils Lake v. Grove, 2008 ND 155, 755 N.W.2d 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 Braathan's
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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I
basis to believe any type of criminal activity was taking place within the farmyard:· 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 U.S. 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 N.D. L. Rev. 673 (2010). In
Kyllo v. United States. 533 U.S. 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, ~
7,598 N.W.2d 811(citing State v. Lanctot, 1998 ND 216, ~ 5,587 N.W.2d 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 U.S. 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 U.S.
160, 180,69 S.Ct. 1302, 1313,93 L.Ed. 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 N.W.2d 437 (N.D. 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 N.W.2d 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
N.W.2d at 445 (VandeWalle, l, concurring). (citing Hampton v. United States, 425 U.S.
484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) and Evans v. State, 550 P.2d 830 (Alaska 1976)
for the proposition that "outrageous police conduct may bar conviction as a matter of law").
"Whether the government's 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 N.W.2d 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 U.S. 103 (1975); State
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v. Biby, 336 N.W.2d 460, 462 (N.D. 1995); State v. Mees, 272 N.W.2d 284, 287 (N.D.
1978); State v. Hager, 271 N.W.2d 476,480 (N.D. 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 defendant's 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 U.S. 465, 540 (White, J., dissenting); United States v. Calandr!b 414
U.S. 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 ofthe 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.
____---­

Bruce D. Quick (#03510) Ross Brandborg (#06029)
Mark A. Friese (#05646) BRANDBORG & GAST
VOGEL LAW FIRM
35 4th Street North, Suite 201
218 NP Avenue Fargo, 58102
POBox l389 Telephone: 701.237.0099
58107-1389
Telephone: 701.237.6983
Facsimile: 701.237.0847 ATTORNEYS FOR ABBY, ALEX,
ATIORNEYS FOR RODNEY JACOB, THOMAS, and SUSAN
BROSSART
. BROSSART
1366374.2
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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 of governmental officers.
On the evening of June 22, 2011, or early morning hours of June 23, 2011, three
cow/calf 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 N.D.C.C.
§ 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 Sheriff's 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 Stockman's
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
109
th
Rodney 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 ifthey 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 Jacob's rescue effort, ratclieting -Jacob's ann behind his -back, and
handcuffing him. Frederickson directed Jacob to Braathan's 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 deputy's 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 State's
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 cow.,ca1f 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
This.is a case of outrageous 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, Ch.36-13, N.D.C.C., however, does not apply. Instead, Mr.
Brossart's lawful possession of the cattle was-as he insisted-govemed by N.D.C.C. § 36­
11-10, which provides:
§ 36-11-10. Trespassing livestock may be distrained--Notice to owner-­
Security 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 w i t h o ~ t unnecessary delay, ifthe 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 person's 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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Nelson Counly. NO
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 attorney's 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 N.D.C.C. § 36-11-19 (noting persons who take livestock
lawfully held under the trespassing N.D.C.C. § 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 N.D.C.C. § 36-13-01. Contrary to
law enforcement claims, estray law is inapplicable because the trespassing animals were not
estrays. See N.D.C.C. § 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 § 46 (2012); see also, Campbell v.
Hamilton, 172 N.W. 810 (N.D. 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." N.D.C.C. § 1-01-06. The
present trespassing animals were not estrays. See N.D.C.C. §§ 36-22-01 (providing the
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statutory definition of estray); 36"'1-3-01 (permitting taking possession of-an estray "provided
the person does not know who owns the estray"); Campbell, 172 N.W. at 810.
The rights and remedies established for trespassing animals versus estrays are
significant and long-recognized. See e.g., Martin v. Ludowese, 184 N.W. 575 (N.D. 1921).
Under !'forth Dakota law, specific statutes control general statutes. City of Bismarck v.
Fettig, 1999 ND 193, ,14,601 N.W.2d 247 (citing N.D.C.C. § 1-02-07). Section 36-11-10,
N.D.C.C., 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." N.D.C.C. § 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 N.D.C.C. § 36-11-10.
1
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 enforcement's tortured application of North Dakota law to
conclude the trespassing animals were estrays, Mr. Anderson's actual knowledge of the location
ofthe cattle satisfied any notice obligation the Brossarts would have had. See La Porte v. Van
Buskirk, 217 N.W. 173, 176 (N.D. 1927) (when the owner of an estray "appears and demands
the animals," the purpose ofthe 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 N.D.C.C. § 36­
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 N.W.2d 442, 447 (citing In re Estate of
Samuelson, 2008 ND 190, ~ 11, 757 N.W.2d 44). Because N.D.C.C. § 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 U.S. 397,414 (1989), the Court said, "Ifthere
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. 274 U.S. 357, 374 (1927) (Brandeis, J.,
concurring).
Rodney Brossart's statement was not a "true threat," and prosecution for that
statement violates the First Amendment. See Virginia v. Black, 538 U.S. 343 (2003)
(holding only "true threats" are denied First Amendment protection); see also, City of
Bismarck v. Schoggert, 469 N.W.2d 808, 814 (N.D. 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 U.S. at 359 ,
(citation omitted). Mr. Brossart's 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 U.S 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 U.S. 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 U.S. 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 N.W.2d 789, 795
(N.D. 1989); City ofBismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991).
In Tenniniello v. Chicago, 337 U.S. 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. Brossart's
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 ofN.D.C.C. § 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. The'warrantless 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 of law enforce,ment.. .
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 N.D.C.C. § 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 officer's erroneous belief that Mr. Brossart
committed an offense does not obviate the unlawful arrest. .see Colling v. Hjelle. 125 N.W.
453,457 (N.D. 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. Anderson's 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 Anderson's actual knowledge of
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the location of the cattle. 'See La Porte v. Van Buskirk, 217 N.W. 173, 176 (N.D. 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
N.D.C.C. § a law officer may arrest for felonies based on probable
cause, or for misdemeanors committed or attempted in the officer's presence. See also,
N.D.C.C. § 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 inspector's
presence"). Because no offense was committed, law enforcement lacked authority to arrest.
Colling v. Hjelle, 125 N.W. 453, 458 (N.D. 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 N.W.2d 444,447 (N.D. 1991). Mr. Brossart's arrest was unlawful, and
all evidence "gained by means of [that] unlawful arrest is not admissible at trial." State v.
Wetsch, 304 N.W.2d 67,68 (citing State v. Mees, 272 N.W.2d 284,287 (N.D. 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 of Dep. 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 citizen's liberty by
means of physical force or simple show of authority. City of Fargo v. Sivertson, 1997 ND
204, , 8,571 N.W.2d 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 N.W.2d 390,392 (N.D.
1995». Frederickson's 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 N.W.2d 602. The rule permitting warrantless reasonable suspicion seizures "should be
expressly limited to investigation of serious offenses") 4 Wayne R. Lafave. Search and
Seizure § 9.2(c), at 32 (3d ed.l996); see also, United States v. Hensley, 469 U.S. 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:MI. Brossart's 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 N.W.2d 485 (citing State v. Anderson. 2006 ND 44,
,22, 710 N.W.2d 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 individual's 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. Brossart's superior claim of possessory interest in the.
trespassing cattle. The video clearly shows that officers repeatedly interfered with Mr.
Brossart's ability to return to work. The unlawful seizure quickly became an unlawful
defacto arrest, and then an unlawful warrantless custodial arrest.
Ifthe court fails to exclude evidence derived from an improper arrest, and the error is
not harmless beyond a reasonable doubt, the defendant's conviction will be reversed. See,
City of Wahpeton v. Johnson, 303 N.W.2d 565, 567 (N.D. 1981) (citing State v. E r d m ~
170 N.W.2d 872 (N.D.l969); 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 N.W.2d 710, 714 (N.D. 1990) (citing LN.S. v. Lopez-Mendoza, 468 U.S.
1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); United States v. Wenzel. 485 F.Supp. 481
(D.C.Minn.1980); State v. Wetsch. 304 N.W.2d 67 (N.D.1981); State v. Mees. 272 N.W.2d
284 (N.D.1978». 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
N.D.C.C. § 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 person's detention.").
Police may use force to arrest, but only if the defendant "flees or forcibly resists." N.D.C.C.
§ 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 person's response to an unlawful arrest is
usually a question of fact for the jury. See e.g., State v. Falconer, 2007 ND 89, ~ 16, 732
N.W.2d 70; State v. Cox, 532 N.W.2d 384,387 (N.D. 1995); and State v. Ritter, 472 N.W.2d
444,452 (N.D. 1991). But determination of the unlawful arrest is a question of law for the
Court's determination. Ritter, 472 N.W.2d 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 N.W.2d 808 (N.D. 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 Jacob's actions did not threaten, provoke, harm, or interfere. Consistent with City
of Devils Lake v. Grove, 2008 ND 155, 755 N.W.2d 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 Braathan's
arm. 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
I
was conspicuously posted against trespass. Rodney and Abbey were in jail. There was no
i
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I
basis to believe any type of criminal activity was taking place within the farmyard:· The
absence of probable cause and prior justification prohibited police entry onto the property,
and requires suppression of evidence and observations thereon. S e e ~ , Texas v. Brown,
460 U.S. 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 N.D. L. Rev. 673 (2010). In
Kyllo v. United States, 533 U.S. 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, ~
7,598 N.W.2d 811(citing State v. Lanctot 1998 ND 216, ~ 5,587 N.W.2d 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 U.S. 757, 768 (1966). Stated differently,
even in instances in which searches are authorized by a proper search warrant, ifthe 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 U.S.
160, 180,69 S.Ct. 1302, 1313,93 L.Ed. 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 N.W.2d 437 (N.D. 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 N.W.2d 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
N.W.2d at 445 (VandeWalle, J., concurring). (citing Hampton v. United States, 425 U.S.
484,96 S.Ct. 1646,48 L.Ed.2d 113 (1976) and Evans v. State. 550 P.2d 830 (Alaska 1976)
for the proposition that "outrageous police conduct may bar conviction as a matter of law").
"Whether the government's 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 N.W.2d 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 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 U.S. 103 (1975); State
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v. Biby, 336 N.W.2d 460, 462 (N.D. 1995); State v. Mees, 272 N.W.2d 284, 287 (N.D.
1978); State v. Hager, 271 N.W.2d 476, 480 (N.D. 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 defendant's 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 U.S. 465, 540 (White, 1, dissenting); United States v. Calandriib 414
U.S. 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 April, 2012.
____---­
By:
Bruce D. QUick (#03510) Ross Brandborg (#06029)
Mark A. Friese (#05646) BRANDBORG & GAST
VOGEL LAW FIRM
35 4th Street North, Suite 201
218 NP Avenue
Fargo, ND 58102
POBox 1389
Telephone: 701.237.0099
Fargo, ND 58107-1389
Telephone: 701.237.6983
Facsimile: 701.237.0847
ATTORNEYS FOR ABBY, ALEX,
ATTORNEYS FOR RODNEY
JACOB, mOMAS, and SUSAN
BROSSART'
, BROSSART
1366374.2
23
Filed Clerk Of Dislrict Court
4110/20123:00:37 PM
Nelson County. ND
FILED
In DIstrlet Court
Nelson County. NO
IN DISTRICT COURT, NELSON COUNTY, NORTH DAKOTA
APR 2 3 2012
State of North Dakota,
Plaintiff,
Ruth Stevens. Clerk.
By:__----­
Deputy
STATE'S 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 of North Dakota,
v.
Abby Brossart
File Nos. 32-2011-CR-00050, 00076
State of North 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 Dakota
t
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
Brossart's 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. Anderson's 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 Sheriff's Office.
Nelson County Sergeant Eric Braathen and North Dakota Stockmen's Association Field
Agent Fred Frederikson then began driving to Mr. Brossart's 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 they're your neighbor's cattle," Mr, Brossart replied, "Oh,
are they? I haven't had any proof yet." Mr. Frederikson informed Mr. Brossart that he had brand
papers for the cattle that had strayed on Mr. Brossart's land, and asked to go look at them. Mr.
Brossart then said, "If you step foot on that property, you're not waJking away." Mr. Brossart
said he was going to finish what he was doing and Sergeant Braathen said, "No, we're 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 of estray 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 Stockmen's 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 chief brand 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 of an 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 N.W. 810 (N.D. 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 neighbor's 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 12.1-23-02, NDCC, states: "A person is gui1ty oftheft ifhe: 1. Knowingly takes
or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the
property ofanother with intent to deprive the owner thereof." Mr. Brossart had control of the
cattle, and claimed ownership of Mr. Anderson's property. This constitutes an unauthorized
transfer of Mr. Anderson's 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 ofthe 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 N.W.2d 707 (N.D. 1992). the Court at p. 710. citing Siale v. Hass,
268 N.W.2d 456. stated the determination of whether particular words constitute a threat is a
question of fact, and citing Stale v. Howe, 247 N.W.2d 647.654 (N.D. 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 of resisting 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 person's 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 N.W.2d 137 (N.D. 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 12.1-05-03(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 Brossart's conviction for violating N.D.C.C. §
12.1-08-02( I). However. our inquiry does not end with that conclusion because Brossart also
argues he had the right under N.D.C.C. § 12.1-05-03(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 deputy's 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 of duty by a public servant under color of law, but excessive force
may be resisted." N.D.C.C. § 12.1-05-03(1).
"[' 13] In Ritter, this Court examined the legislative history and the purposes ofN.D.C.C. §
12.1-05-03(I) and held a defendant's forceful resistance to an arrest under color of law is not
legally justified unless "excessive force" is used by the officers. Ritter, 472 N.W.2d 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 N.W.2d
266,271 (N.D. 1993); Cox, 532 N.W.2d 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. Officer's 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 father's demand. was the least intrusive means
available to the officers at the time.
The defense next claims the arrest of Abby 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 of being 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 of resulting 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 $15,000 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 Frederikson's
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), N.D.R.Crim.P., 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." N.D.R.Crim.P. 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
12.1-22-03(5), NDCC, provides: "This section does not apply to a peace officer in the course of
discharging the peace officer's 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 of property, 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 Brossart's 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 Brossart's
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. Mbeck{0325) ==
Nelson County State's Attorney
PO Box 533, Lakota, ND 58344
Telephone: 701-247-2138
Attorney for the Plaintiff
13