Argued Nov. 5, 2013.
[Copyrighted Material Omitted]
Marty J. Jackley, Attorney General, Bethany L. Erickson, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Molly Quinn of Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice.
[¶ 1.] Defendant Jeffrey Scott Mohr was convicted of possession of a controlled substance, possession of drug paraphernalia, and obstructing a law enforcement officer, after being mistakenly identified as a suspected armed robber and detained by police. Mohr appeals, alleging officers did not have reasonable suspicion of criminal activity to stop or frisk Mohr. Mohr asserts that evidence against him was obtained in violation of his Fourth Amendment right against unreasonable search and seizure and that the trial court erred by denying a motion to suppress the evidence.
Facts and Procedural History
[¶ 2.] Mary Griffith was working as a casino attendant at Deuces Casino in Sioux Falls, South Dakota, on the afternoon of August 3, 2011. Defendant Jeffrey Scott Mohr entered the casino, wearing sunglasses and a baseball cap. Mohr got change, snacks, and a drink, and began gambling at the machines. Griffith immediately became frightened, concerned that Mohr was an unidentified fugitive who had robbed other casinos in the area and was in the process of " casing the place" as his next target.
[¶ 3.] A number of recent armed robberies in the area had placed casino owners, employees, and law enforcement on heightened alert. Griffith's friend, who worked at another casino in Sioux Falls that had been robbed, told Griffith that the robber had entered the casino wearing a baseball cap and sunglasses, got a snack, a drink, and change, and then proceeded to play the machines for some time before robbing the casino. Griffith's manager had also placed a " wanted" poster up in Deuces Casino for employees to see. The poster was created by another casino in Sioux Falls and showed three pictures of an armed robbery in progress, taken from a casino video surveillance camera. The suspect pictured in the photos was a Caucasian male wearing sunglasses and a
baseball cap, holding up a casino at gunpoint. The manager informed employees not to hesitate to call police if they believed the person pictured on the poster was in the casino.
[¶ 4.] While Mohr was playing a video lottery machine, Griffith surreptitiously conferred with two regular customers of the casino. After showing the customers the poster, the customers agreed that Mohr looked like the man pictured on the poster. Griffith then pushed the casino's " panic button." In response to the panic button, Metro Communications phoned the casino and spoke with Griffith. The dispatcher informed Griffith that if she did not feel safe talking, Griffith could answer yes and no questions and pretend that someone else was calling. A very frightened Griffith was able to relay that " he" was inside the casino and that she and two customers thought it " certainly looked like him." Griffith indicated that she wasn't able to tell if Mohr was armed, but she was able to relay to the dispatcher Mohr's location within the casino. Metro Communications dispatched law enforcement to the scene while staying on the telephone with Griffith.
[¶ 5.] When officers arrived, Griffith indicated toward Mohr, who was seated at a video lottery machine. Although it was dark inside the casino, Mohr was still wearing sunglasses and had his baseball cap pulled down over his face. Mohr was asked to step outside. Mohr was accompanied outside by Officers Chris Bauman and Ryan Sandgren, who asked Mohr for an identification card, his birthdate, and his address. Mohr complied.
[¶ 6.] Meanwhile, inside the casino, Griffith explained to Officers Nick Cook and Andrew Siebenborn why she had made the call. Griffith then showed the officers the poster with the photos of the robbery in progress at another casino. Officer Siebenborn examined the poster and agreed that Mohr appeared to be the same person depicted on the poster robbing the casino. Knowing that the previous robberies had involved weapons, Officer Siebenborn went outside to speak with the other officers and Mohr and ensure that Mohr had been patted down for weapons.
[¶ 7.] Once outside, Officer Siebenborn learned that Mohr had not been patted down. At that time, Officer Siebenborn observed that Mohr seemed " jittery and somewhat nervous." He asked Mohr to place his hands against the building and initiated a frisk of Mohr's outer clothing. Officer Siebenborn felt a wallet in Mohr's pocket, but also a hard ...