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State of South Dakota v. Annette M. Herren

December 22, 2010

STATE OF SOUTH DAKOTA,
PLAINTIFF AND APPELLEE,
v.
ANNETTE M. HERREN,
DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA HONORABLE DAVID R. GIENAPP Judge

The opinion of the court was delivered by: Meierhenry, Justice

CONSIDERED ON BRIEFS

ON NOVEMBER 15, 2010

[¶1.] A Brookings County Deputy Sheriff stopped Annette Herren's vehicle primarily because of his observation that it hesitated too long (about 40 seconds) at a stop sign at a rural intersection. The stop resulted in Herren's arrest for driving while under the influence of alcohol. Herren challenges the constitutionality of the investigatory stop, claiming that the arresting officer did not have reasonable suspicion to stop her. The trial court determined that the officer had reasonable suspicion based on her delay at the stop sign. Herren appeals the trial court's ruling. We hold that the totality of the circumstances -- the stop-sign delay along with an anonymous tip concerning a possible drunk driver -- provided the officer with reasonable suspicion to proceed with the investigatory stop. Affirmed.

FACTS

[¶2.] The facts surrounding the stop are not disputed. At approximately 9:00 p.m. on August 2, 2009, the officer received a radio communication from dispatch that an anonymous male had called to report that a possible drunk driver would be driving on Highway 14 from Flandreau, South Dakota, to Toronto, South Dakota. The anonymous caller described the vehicle as a "blue Ford Durango." In response, the officer drove to a rural intersection at Highway 14 and 478th Avenue between Flandreau and Toronto. The officer parked his patrol car and waited. [¶3.] The officer eventually saw a vehicle approach the intersection and stop at the stop sign. He testified at the preliminary hearing that "when [the vehicle] came to stop at the stop sign it appeared to be a Dodge Durango." The vehicle remained stopped for approximately 40 seconds. After the vehicle began to drive through the intersection, the officer immediately "pulled in behind the vehicle, activated [his] red lights . . . and made a traffic stop on the vehicle." The officer said he made the traffic stop because the driver stopped too long at the intersection for no apparent reason. [¶4.] At the suppression hearing, the officer explained why he stopped Herren:

State's Attorney: At the preliminary hearing, [Deputy], you had testified that you would have stopped this vehicle even though without any prior warning that the driver might have been intoxicated; do you remember that?

Deputy: Yes, I do.

State's Attorney: And I believe you testified that was because of the length of this stop?

Deputy: That is correct.

State's Attorney: And why would you have stopped the vehicle as a result of that?

Deputy: Through my training and experience the length of stop as this one has, excuse me, as this one, that is an indicator of a possible impaired driver.

State's Attorney: That is something that you learned through your training and experience?

Deputy: Yes, sir.

State's Attorney: And from what you had observed there was no reason for this vehicle to stop at this stop sign for some 45 seconds? *fn1

Deputy: That is correct.

State's Attorney: There was no traffic to prevent the driver ...


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