CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J.
J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
M. MCCARTY JENNIFER GOLDAMMER of Helsper, McCarty, Rasmussen,
PC Brookings, South Dakota Attorneys for defendant and
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
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.
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.
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.
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.
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.
"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 ...