APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE WALLY EKLUND Judge
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON NOVEMBER 14, 2011
[¶1.] Shanna Starkey was arrested for driving under the influence of alcohol. The stop was based on the officer's perception that Starkey was attempting to evade the police. The circuit court suppressed the evidence, concluding that the officer lacked reasonable suspicion to justify the stop. We reverse because, under the totality of the circumstances, Starkey's evasive driving provided reasonable suspicion that criminal activity was afoot.
Facts and Procedural History
[¶2.] Around 2:00 a.m. on July 21, 2010, police officer Brian Fletcher was patrolling in downtown Rapid City. He was stopped at a red light in the center lane of Main Street, a three lane one-way street. Fletcher noticed Starkey's vehicle leaving a parking place behind him on Main Street. As Starkey left the parking place, she entered the left lane of the three lane street, but she stopped in her lane of traffic and did not move forward to the intersection where Fletcher was stopped. Even though there were no cars in front of her, Starkey remained stopped in the left lane of traffic, staying four or five car lengths behind Fletcher's patrol vehicle until the light turned green. When the light turned, Fletcher proceeded through the intersection and Starkey proceeded to the intersection but turned left on Mount Rushmore Road. Suspicious of Starkey's unusual stop, Fletcher decided to follow Starkey's vehicle.
[¶3.] Because Fletcher had proceeded through the intersection, he turned left at the next two intersections to try to locate Starkey's vehicle. Fletcher found Starkey's vehicle stopped at a stoplight, headed south on Mount Rushmore Road.
When Fletcher began to follow Starkey, she turned left onto Kansas City Street. She then drove one-half block, turned left into a church parking lot, drove through the parking lot and into an alley making what the court described as an "S" maneuver. Although Fletcher attempted to meet Starkey's vehicle at the end of the alley, she turned onto St. Joseph Street, then onto Seventh Street, and then back to Main Street, where she parked near the front of a bar near the parking space where her trip began. Fletcher pulled in behind Starkey's vehicle and turned on his patrol lights. Fletcher approached Starkey and stated: "Looks like you're doing a lot of work trying to avoid me." Fletcher also noticed evidence of alcohol consumption. Starkey was ultimately arrested for driving under the influence.
[¶4.] Starkey moved to suppress the evidence. She argued that Fletcher did not have reasonable suspicion to stop her vehicle. The circuit court suppressed, reasoning that there were no observable traffic violations. The court ruled: "I am unable to discern specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant this stop. . . . There were no traffic violations that should have prompted the pursuit." In its formal findings of fact and conclusions of law, the court concluded that an objective law enforcement officer in Fletcher's position would not have concluded that "Starkey was in violation of law or that [Starkey's] actions gave rise to suspicion of illegal activity to merit the stop." This Court granted the State's motion for intermediate appeal.
[¶5.] "An investigatory traffic stop must be 'based on objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring.'" State v. Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d 551, 554 (citation omitted). The suspicion must be based on the totality of the circumstances, and the officer may make inferences and deductions from the information observed.
When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." Although an officer's reliance on a mere "'hunch'" is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying the preponderance of the evidence standard.
Id. (quoting United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002) (internal citations omitted)). "Our determination must be based on an objective standard that considers whether 'the facts observable to the law enforcement officer at the time of the stop entitle an officer of reasonable caution to believe the action taken was appropriate.'" Id. ¶ 14 (citations omitted). We review de novo the application of these constitutional standards to the undisputed facts of this case. See State v. Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794.
[¶6.] The circuit court first reasoned that "[t]here were no traffic law violations that should have prompted the pursuit." There is no dispute that had Fletcher observed a traffic violation, however minor, he would have had probable cause to initiate a stop. State v. Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414.
But in order to justify an investigatory stop, an officer's suspicion need not rise to the level of probable cause that a traffic ...