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State of South Dakota, Plaintiff v. Shane H. Erwin

May 8, 2013

STATE OF SOUTH DAKOTA, PLAINTIFF AND APPELLANT,
v.
SHANE H. ERWIN, DEFENDANT AND APPELLEE. STATE OF SOUTH DAKOTA,
PLAINTIFF AND APPELLANT,
v.
RICHARD H. ERWIN DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. TIMM Judge

The opinion of the court was delivered by: Severson, Justice.

#26422, #26423-rev & rem-GAS

CONSIDERED ON BRIEFS ON FEBRUARY 12, 2013

[¶1.] On January 3, 2012, Shane Erwin was traveling with his father, Richard Erwin, through Watertown, South Dakota. While driving on U.S. Highway 212, Shane pulled his vehicle into the left turn lane at the intersection of 29th Street and signaled his intention to turn south onto 29th Street. While Shane was waiting for a green left turn arrow, Officer Kirk Ellis of the Watertown Police Department pulled into the left turn lane directly behind Shane's vehicle, also intending to go south on 29th Street.

[¶2.] Westbound U.S. Highway 212 has four lanes at the intersection with 29th Street: one dedicated left turn lane, one dedicated right turn lane, and two lanes for westbound movement through the intersection. South of U.S. Highway 212, 29th Street is a two way street with two southbound lanes in the direction of the Wal-Mart Supercenter and other shopping destinations. The lanes are separated by pavement marking stripes, which were applied in 2008. Also in 2008, the State of South Dakota added turning radius markings from the left turn lane of U.S. Highway 212 through the intersection to the left most southbound lane of 29th Street to guide left turning traffic.

[¶3.] When the left turn arrow changed to green, Shane drove through the intersection onto south 29th Street, making a wide arc and positioning his vehicle in the right southbound lane of 29th Street, rather than the left southbound lane of the street. Officer Ellis observed Shane's turn into the right southbound lane of 29th Street and activated his emergency lights. Officer Ellis followed Shane into the Wal-Mart parking lot, approached Shane's vehicle, and requested that Shane come back to Officer Ellis's patrol car.

[¶4.] While in the patrol car, Officer Ellis wrote Shane a warning citation for his illegal left turn and engaged in routine traffic stop questioning. Officer Ellis asked Shane if he had any illegal drugs in his vehicle. Officer Ellis observed that Shane became nervous when he asked Shane about drugs. Because Officer Ellis is a canine officer, he had a drug sensing dog with him at the time of the stop. Officer Ellis walked his dog around Shane's vehicle and the dog indicated the presence of drugs. Other officers from the Watertown Police Department arrived at the scene to assist Officer Ellis. When they searched the vehicle, Officer Ellis and the other officers found two small plastic containers containing a white powder, a scale with marijuana residue, and two straws with white powder residue.

[¶5.] Shane and Richard were arrested. Both were initially charged with one count each of ingestion, felony possession of cocaine, and felony possession of methamphetamine. The State eventually dismissed both felony possession charges against Richard and the felony possession of methamphetamine charge against Shane.

[¶6.] The Erwins moved to suppress evidence, alleging an illegal stop. The trial court held a hearing on the motion and heard testimony from Officer Ellis, Ron Sherman, Watertown Area Engineer for the South Dakota Department of Transportation, and Tom Drake, Watertown City Engineer. The trial court granted the motion to suppress and entered findings of fact and conclusions of law.

[¶7.] The State brought an appeal of the intermediate order, arguing that the trial court erred in granting the motion to suppress because Officer Ellis observed Shane violating a state traffic law and had reasonable suspicion and probable cause to stop the Erwins.

STANDARD OF REVIEW

[¶8.] We review "'a motion to suppress based on an alleged violation of a constitutionally protected right [as] a question of law examined de novo.'" State v. Dahl, 2012 S.D. 8, ¶ 4, 809 N.W.2d 844, 845 (quoting State v. Bergee, 2008 S.D. 67, ¶ 9, 753 N.W.2d 911, 913-14). "[W]e review the circuit court's findings of fact under the clearly erroneous standard, but we give no deference to its conclusions of law." State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622 (citing State v. Haar, 2009 S.D 79, ¶ 12, 772 N.W.2d 157, 162). We review issues of statutory interpretation "under the de novo standard." State v. Jucht, 2012 S.D. 66, ¶ 22, 821 N.W.2d 629, 634 (citing State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920). But "'[w]hen the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed.'" Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17).

DISCUSSION

[¶9.] When a law enforcement officer stops a vehicle, 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 (quoting Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d at 914). But, if a law enforcement officer observes a traffic violation, then the officer has "'probable cause to stop a vehicle, even if the officer would have ignored the violation but for a suspicion that greater crimes are afoot.'" State v. Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414 (quoting United States v. Luna, 368 F.3d 876, 878 (8th Cir. 2004)). "The United States Supreme Court holds that a traffic stop is constitutional, no matter the officer's subjective intent, so long as the officer had probable ...


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