Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kleven

Supreme Court of South Dakota

November 22, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
NICHOLAS R. KLEVEN, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J. STOLTENBURG Judge

          MARTY J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          DONALD M. MCCARTY JENNIFER GOLDAMMER of Helsper, McCarty, Rasmussen, PC Brookings, South Dakota Attorneys for defendant and appellant.

          WILBUR, JUSTICE

         [¶1.] After being arrested and charged with driving under the influence, defendant moved to suppress the evidence. The circuit court denied defendant's motion, concluding that an exception to the warrant requirement applied because the officer acted in his function as a community caretaker. We affirm.

         Background

         [¶2.] At approximately 1:00 a.m. on January 21, 2015, Officer Marci Gebers observed a vehicle parked on the 400 block of Third Street in downtown Brookings, South Dakota. The vehicle was running, and Officer Gebers observed a man in the driver's seat, later identified as Nicholas Kleven. Officer Gebers testified that she believed the occupant was either looking at his mobile phone or waiting for someone. Officer Gebers explained that she did not approach the vehicle to make any further observations.

         [¶3.] At approximately 1:40 a.m., Officer Adam Smith drove past the same vehicle previously observed by Officer Gebers. Like Officer Gebers, Officer Smith observed that the vehicle was running and there was a man in the driver's seat. Officer Smith believed the occupant may have been looking at his mobile phone. Officer Smith drove past Kleven's vehicle, noted the license plate number, and requested a license plate check. Officer Gebers overheard the request on the radio and informed Officer Smith that she had observed the same vehicle at 1:00 a.m.

         [¶4.] Officer Smith then parked his patrol vehicle in a parking lot one block away with a line of sight on Kleven's vehicle. Shortly after 2:00 a.m., Officer Smith moved his patrol vehicle directly behind Kleven's vehicle. He exited his patrol vehicle and approached Kleven's driver's-side window. He observed Kleven sitting in the driver's seat and believed Kleven was either sleeping or passed out. Officer Smith radioed for another officer to park a patrol vehicle in front of Kleven's vehicle. Officer Smith testified that he could not tell if the occupant had the vehicle in drive or park and made the request out of his concern that he would startle the occupant and cause the occupant to accidentally accelerate his vehicle.

         [¶5.] After the second officer parked a patrol vehicle in front of Kleven's vehicle, Officer Smith knocked on Kleven's driver's-side window several times. Kleven briefly opened his eyes and looked toward the window. Kleven did not acknowledge Officer Smith. Kleven put his head back down. Officer Smith testified that he was concerned and opened Kleven's driver's-side door. Immediately, Officer Smith smelled the odor of alcohol. Kleven was subsequently arrested and charged with driving under the influence.

         [¶6.] On April 7, 2015, Kleven filed a motion to suppress. Kleven asserted that Officer Smith did not have reasonable suspicion to support the intrusion. The circuit court held an evidentiary hearing on July 21, 2015. Officers Gebers and Smith testified. At the conclusion of the hearing, the court issued an oral ruling. It held that the circumstances justified Officer Smith's investigation under the community caretaker exception to the warrant requirement. The court denied Kleven's motion to suppress. It issued findings, conclusions, and an order. Kleven appeals, asserting one issue for our review: whether the circuit court erred when it denied his motion to suppress on the basis that the community caretaker exception applied.

         Standard of Review

         [¶7.] "We review the circuit court's grant or denial of a motion to suppress involving an alleged violation of a constitutionally protected right under the de novo standard of review." State v. Smith, 2014 S.D. 50, ¶ 14, 851 N.W.2d 719, 723. We review the circuit court's factual findings for clear error. State v. Mohr, 2013 S.D. 94, ¶ 12, 841 N.W.2d 440, 444. Once the facts have been determined, we give no deference to the court's application of a legal standard to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.