CONSIDERED ON BRIEFS ON MAY 20, 2013
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT HARDING COUNTY, SOUTH DAKOTA THE HONORABLE JOHN W. BASTIAN Judge
MARTY J. JACKLEY Attorney General MATT NAASZ Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
RONDA MILLER of Belle Fourche, South Dakota Attorney for defendant and appellant.
[¶1.] Jason Hett appeals his convictions for driving under the influence of alcohol (DUI) and for an open container violation. He argues that the circuit court erred in denying his motion to suppress evidence obtained after the stop of his vehicle because the law enforcement officer had no reasonable suspicion of a violation of law to support the stop. We affirm, concluding that the circuit court did not err in denying the motion to suppress because the officer had a reasonable suspicion that Hett violated a statute requiring his vehicle to "be driven as nearly as practicable entirely within a single lane[.]" SDCL 32-26-6.
Facts and Procedural History
[¶2.] At 11:30 p.m. on the night of December 3, 2011, South Dakota Highway Patrol Trooper Jody Moody was patrolling in rural Harding County, heading north toward the town of Buffalo. About three miles south of Buffalo, Trooper Moody met and observed a southbound pickup cross the fog line and drive on the shoulder of the highway. Trooper Moody turned his patrol car around, pursued the pickup, and stopped it. On making contact with the driver, later identified as Hett, Moody detected the odor of an alcoholic beverage.
[¶3.] Trooper Moody was quickly joined at the scene by Trooper Jonathan Deuter, another South Dakota Highway Patrol Trooper patrolling in the area. Trooper Moody turned Hett over to Trooper Deuter to investigate Hett for DUI. Trooper Deuter proceeded to interview Hett, to administer a series of field sobriety tests, and to have him take a preliminary breath test. The breath test indicated a result of 0.20% and, based upon that and the other results of the investigation, Trooper Deuter arrested Hett for DUI. A search was then conducted of Hett's pickup and an open can of beer was found inside. Hett was transported to the Meade County jail where blood was drawn for a blood alcohol test that later indicated a result of 0.211% by weight of alcohol in the blood.
[¶4.] Hett was charged by information with: one count of DUI by driving or actual physical control of a vehicle while under the influence of alcohol; an alternative count of DUI by driving or actual physical control of a vehicle while having 0.08% or more by weight of alcohol in the blood; one count of not driving properly in his lane; and one count of open container. A part two habitual offender information was also filed alleging that Hett had one prior DUI conviction.
[¶5.] Hett moved to suppress all the evidence obtained as a result of the stop of his vehicle on the basis that the State did not have sufficient cause for the stop. After an evidentiary hearing, the circuit court entered findings of fact, conclusions of law and an order denying the motion to suppress on the basis that Hett's crossing of the fog line provided reasonable suspicion of a violation of law necessary to support the stop.
[¶6.] At his jury trial, Hett was found guilty of DUI by driving or actual physical control of a vehicle while having 0.08% or more by weight of alcohol in the blood and one count of open container. The jury acquitted Hett of the remaining charges including the lane violation. A court trial was later held on the allegations of the part two habitual offender information, and the court adjudicated Hett guilty of second offense DUI. He was sentenced to ninety days in the county jail for the DUI with eighty days suspended on various conditions including payment of a $500 fine. In addition, Hett was fined $54 for his open container violation. He appeals.
Analysis and Decision
[¶7.] Hett contends that a "vehicle driving over the fog line when meeting a law enforcement vehicle" will not "provide law enforcement with sufficient cause to justify a traffic stop." Generally, the Constitution's Fourth Amendment prohibition against unreasonable searches and seizures applies to motor vehicle stops and law enforcement must obtain a warrant to support a stop. Rademaker, 2012 S.D. 28, ¶¶ 8-9, 813 N.W.2d at 176. "However, as an exception to this general rule, an officer may stop a car, without obtaining a warrant, if there is 'reasonable suspicion . . . that criminal activity may be afoot.'" Id. ¶ 9 (quoting Wright, 2010 S.D. 91, ¶ 10, 791 N.W.2d at 794). An officer's observation of "a traffic violation, however minor, " provides reasonable suspicion of a violation of law sufficient to support a traffic stop.See State v. Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d 125, 128 (citing State v. Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414). See also State v. Lockstedt, 2005 S.D. 47, ¶ 17, 695 N.W.2d 718, 723 (stating that, "a traffic violation, however minor, is ...