APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA THE HONORABLE RONALD K. ROEHR Judge
The opinion of the court was delivered by: Wilbur, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 14, 2012
[¶1.] Ryan Rademaker appeals his conviction of driving while under the influence of alcohol arguing that the Fourth Amendment of the United States Constitution required the trial court to suppress evidence arising out of the stop of his car. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] At approximately 1 a.m. on a Sunday morning, Rademaker drove a friend to her home east of Milbank. A police officer and a highway patrol officer were conducting a sobriety checkpoint on the highway Rademaker was traveling. The officers had placed signs with flashing amber lights approximately 100 yards north and south of the checkpoint indicating to drivers that there was a checkpoint ahead.
[¶3.] The officers observed Rademaker approach the checkpoint from the north, drive past the northern sign, and turn onto a gravel road which allowed him to travel away from the checkpoint. Rademaker would later testify that he was not avoiding the checkpoint but rather following his usual route when taking his friend home.
[¶4.] The highway patrol officer instructed the police officer to make contact with Rademaker to determine why he was avoiding the checkpoint. The police officer later testified that he understood "make contact" to mean he should stop Rademaker's car for avoiding the checkpoint. The police officer also testified that, after he got into his patrol car and followed Rademaker, he observed Rademaker make a wide turn, but that he was unsure if the turn violated the law.
Additionally, while following Rademaker, the officer observed that Rademaker was driving at an excessive speed for the conditions, perhaps as fast as 70 miles per hour. However, although the trial court noted in its memorandum opinion that it was aware of this observation, it reasoned that because the officer "was unable to testify that he observed the excessive speed prior to activating his red lights," the observation could not serve as a legal basis for the stop.
[¶5.] Approximately three-quarters of a mile east of the highway, the police officer caught up to Rademaker and stopped his car. Upon approaching Rademaker, the police officer noted that Rademaker smelled of alcohol and exhibited various other signs of intoxication. Rademaker later admitted to the police officer that he had been drinking and submitted to a preliminary breath test which indicated his blood alcohol level was .185. A subsequent blood test indicated a blood alcohol level of .182.
[¶6.] The police officer arrested Rademaker for driving under the influence. Rademaker moved to suppress all evidence obtained from the stop arguing that the stop of his car violated his Fourth Amendment right to be free from unreasonable search and seizures. The trial court denied his motion and convicted Rademaker of driving under the influence. Rademaker appeals the trial court's denial of his motion to suppress.
[¶7.] This Court's standard of review of a denial of a motion to suppress evidence is settled:
A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. The trial court's factual findings are reviewed under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law ...