APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA. HONORABLE VINCENT A. FOLEY Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
[¶1.] Jacob Ludemann was arrested under the citizen's arrest statute SDCL 23A-3-3 by student officers on the campus of South Dakota State University (SDSU) for public urination in violation of a city ordinance. He was thereafter further detained and questioned by a certified law enforcement officer with the SDSU Police Department (SDSUPD) and eventually charged with driving under the influence in violation of SDCL 32-23-1(1). Ludemann moved to suppress all evidence obtained alleging the student officers lacked authority to arrest him under the citizen's arrest statute. Ludemann's motion was denied, and he was convicted of DUI. We reverse.
[¶2.] On January 27, 2007, Cody Chambliss and Mark Hanneman, nineteen-year-old students at SDSU, were on campus walking their assigned foot patrol as on-duty student officers with the SDSUPD. As student officers, Chambliss and Hanneman were under the supervision of the SDSUPD and were wearing SDSUPD uniforms. They were not certified law enforcement officers. At 12:50 a.m., Chambliss and Hanneman observed a vehicle pull into a campus parking lot. The student officers were approximately 100 feet away from the parked vehicle at that time. Chambliss and Hanneman observed the driver exit the vehicle and stand close to and facing toward the vehicle. While they could not directly observe his actions from that distance, they testified that it appeared the driver was urinating on the tire of the vehicle as they could hear liquid hitting the ground. The student officers observed a passenger exit the vehicle, walk a short distance to a light pole, lean over, and vomit. The driver and the passenger then began walking toward a dormitory entrance.
[¶3.] Before the driver and passenger entered the dormitory, Chambliss and Hanneman told the driver and passenger to stop by shouting "Stop, SDSU Police." The driver and passenger complied. Hanneman approached the vehicle to verify what he had seen and noted urine next to the car and vomit by the light pole. Chambliss and Hanneman asked the driver to remain with them while they radioed dispatch for a mobile unit. It appeared to the student officers that the driver and passenger wanted to leave and enter the dormitory, but remained with the student officers at their request. Thomas Ascher, a sworn SDSU law enforcement officer arrived on the scene approximately one minute later.
[¶4.] Officer Ascher encountered the driver and the passenger in the company of the student officers just outside a dormitory entrance. Officer Ascher asked Ludemann who owned the vehicle and why he had urinated on its tire. During the conversation, Ludemann admitted to owning the vehicle, urinating in the parking lot, and to driving to the location. Ascher returned to his patrol car and ran a license plate check to verify Ludemann's claim of ownership. After further conversation, Ascher detected a strong odor of alcohol on Ludemann and asked Ludemann to accompany him to his patrol vehicle. After conducting field sobriety tests, Officer Ascher administered a breathalyzer test that resulted in a reading of.104. Officer Ascher placed Ludemann under arrest for driving under the influence, escorted him to a local hospital for a blood draw, and then to the SDSUPD for booking. Ascher mailed the blood draw to the state laboratory in Pierre, which eventually confirmed a blood alcohol concentration (BAC) of.127 from the sample.
[¶5.] Ludemann moved to suppress all evidence discovered by law enforcement as a result of the stop, detention, and arrest. As the basis for his motion, Ludemann contended that the student officers were without statutory or legal authority to execute the stop, there was no reasonable suspicion or probable cause to support the stop, and in all respects the stop violated Ludemann's constitutional rights.
[¶6.] A hearing was held on the motion to suppress. At that hearing, Hanneman testified he approached Ludemann's car after he noticed what he believed to be the driver urinating in public in violation of a Brookings City Ordinance,*fn1 and after seeing the passenger vomit. Hanneman testified he stopped and detained Ludemann for public urination and held him until Officer Ascher's arrival. Hanneman further testified the SDSUPD Chief of Police and officers trained and instructed him that as a student officer he had authority to stop and detain individuals not abiding the law until a sworn officer arrived on the scene without regard to the type of offense committed. That same information was contained, according to Hanneman, in his training manual.
[¶7.] Officer Ascher also testified at the suppression hearing. Officer Ascher testified to the facts of his arrival and his initial conversation with Ludemann. Officer Ascher testified that when he arrived on the scene, Ludemann was not free to leave and enter his dormitory.
[¶8.] Timothy Heaton, Chief of the SDSUPD, testified at the hearing that student officers wore uniforms with patches identifying them as student officers along with a patch indicating their status as members of the SDSUPD. According to Chief Heaton, the students' authority to stop and detain was contained in the department's policy and procedures manual and was approved by the SDSU administration. Chief Heaton further testified student officers were authorized by the SDSUPD to detain any person the student officers witnessed committing a crime under color of authority as officers, regardless of the category of crime witnessed. He further testified only sworn SDSU officers had authority to conduct an arrest.*fn2
[¶9.] The State argued the citizen's arrest statute, SDCL 23A-3-3, provided Chambliss and Hanneman with authority to arrest Ludemann. The State further argued that public urination was more than a petty offense, rendering it an offense for which a citizen's arrest could be made.*fn3 The State did not argue that the student officers' authority to detain Ludemann was derived from the SDSUPD as suggested by Chief Heaton.
[¶10.] Ludemann argued at the hearing that his detention by the student officers was a seizure within the meaning of the Fourth Amendment. He further argued that public urination in violation of the Brookings City Ordinance was a petty offense for which one may not make a citizen's arrest.
[¶11.] The magistrate court denied Ludemann's motion to suppress from the bench. Ludemann's motion for reconsideration was also denied. The magistrate court concluded the student officers' stop of Ludemann was a seizure within the meaning of the Fourth Amendment. It also concluded the student officers had the same authority as a private person to arrest another for a "public offense" under SDCL 23A-3-3. The magistrate court further concluded the city ordinance prohibiting public urination and imposing a maximum fine of $200 was not a petty offense, but rather was a "public offense."*fn4 It did so after it concluded that the definition of a "public offense" contained in SDCL 22-1-2(29), which provides: "'Offense' or 'public offense,' any crime, petty offense, violation of a city or county ordinance, or act prohibited by state of federal law[,]" indicated that a petty offense was a public offense and therefore, a citizen could arrest anyone for a "public offense" including any "petty offense." The magistrate court further concluded that a petty offense is one that is prosecuted in the name of the state and has a maximum fine of $20. Finally, it concluded the term "petty offense" as used in South Dakota Codified Law pertained only to the definitions and procedures in SDCL 22-6-7 and Chapter 23-1A. The magistrate concluded a violation of the Brookings City Ordinance against public urination was more than a petty offense because the maximum fine was $200. Based on the student officers' observations of Ludemann urinating in public, it ...