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State v. Stanage

Supreme Court of South Dakota

April 5, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
STEVEN ALEXANDER STANAGE, Defendant and Appellant.

          ARGUED OCTOBER 5, 2016

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

          MARTY J. JACKLEY Attorney General CRAIG M. EICHSTADT Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          DONALD M. MCCARTY BENJAMIN KLEINJAN of Helsper, McCarty & Rasmussen, P.C. Brookings, South Dakota Attorneys for defendant and appellant.

          OPINION

          GILBERTSON, CHIEF JUSTICE.

         [¶1.] Steven Alexander Stanage appeals from a final judgment of conviction for driving under the influence. Stanage argues the circuit court erred in denying his motion to suppress evidence obtained during a traffic stop and subsequent blood draw. According to Stanage, the arresting officer lacked a reasonable basis to conclude Stanage had committed a crime. We reverse.

         Facts and Procedural History

         [¶2.] Shortly before 2 a.m. on October 26, 2014, in Brookings, South Dakota, Stanage ordered food at the drive-up window of a Hardee's restaurant. Adam Hill, an employee working at the window, noticed Stanage's eyes were bloodshot and his speech slurred. Stanage also had some difficulty grasping the beverage he had ordered. Hill reported his observations to James Debough, his shift supervisor. Debough, in turn, contacted the police and told a dispatcher that a potentially drunk driver was parked at the window. Debough described Stanage's vehicle as a "car" and gave its license-plate number but did not relay Hill's observations regarding Stanage's eyes, speech, and motor control. Debough told the dispatcher the employees had delayed Stanage's order to stall his departure.

         [¶3.] The dispatcher contacted Brooking's County Sheriff's Deputy Jeremy Kriese, who was only one block away from the Hardee's. The dispatcher gave Deputy Kriese the license-plate number and told him that Hardee's employees were holding Stanage at the drive-up window, but the dispatcher did not provide any additional information regarding the informants' identities to Deputy Kriese. At Deputy Kriese's request, the Hardee's employees "released" Stanage. After Stanage drove away from Hardee's, Deputy Kriese immediately initiated a traffic stop. Deputy Kriese did not independently observe any suspicious behavior-the stop was predicated entirely on the information provided by the dispatcher. Deputy Kriese approached the vehicle and detected an overwhelming odor of alcohol emanating from it. Deputy Kriese administered field sobriety tests and based on the results, arrested Stanage for driving under the influence. Stanage submitted to a blood draw, and an analysis of his blood revealed a blood alcohol content of 0.204% at approximately 2:28 a.m.

         [¶4.] Stanage was charged with driving a vehicle while under the influence of alcohol as a first offense. The case was first tried in magistrate court. Stanage moved to suppress all evidence resulting from the stop, including the results of the blood test. At the suppression hearing, Hill testified about the observations he made on October 26-i.e., Stanage's bloodshot eyes, slurred speech, and motor-control difficulty. The court denied Stanage's motion and convicted him of driving while under the influence. Stanage appealed the magistrate court's decision to the circuit court, which affirmed.

         [¶5.] Stanage appeals, raising one issue: Whether Deputy Kriese had reasonable suspicion to justify the traffic stop.

         Standard of Review

         [¶6.] "[W]e review a motion to suppress evidence obtained in the absence of a warrant de novo." State v. Walter, 2015 S.D. 37, ¶ 6, 864 N.W.2d 779, 782 (citation omitted). "[W]e review the circuit court's factual findings for clear error but 'give no deference to the circuit court's conclusions of law.'" Id. (quoting Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850).

         Analysis and Decision

         [¶7.] The Fourth Amendment protects a person from "unreasonable searches and seizures[.]" U.S. Const. amend. IV. This protection generally requires "that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure[.]" Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). However, "[t]he Fourth Amendment permits brief investigative stops . . . when a law enforcement officer has 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Navarette v. California, U.S.,, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The totality of the circumstances determines whether such a particularized and objective basis exists. Id. "Although a mere 'hunch' does not create reasonable suspicion, the level of suspicion the standard requires is 'considerably less than proof of wrongdoing by a preponderance of the evidence, ' and 'obviously less' than is necessary for probable cause." Id. (citation omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)).

         [¶8.] The information known to Deputy Kriese at the time of the stop was limited. Although Hill had observed that Stanage's eyes were bloodshot, his speech was slurred, and his motor skills were impaired, this information was not known to law enforcement at the time of the stop. Therefore, Hill's observations may not be considered in determining whether Deputy Kriese had a particularized and objective basis for suspecting Stanage was intoxicated. See Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 1379, 146 L.Ed.2d 254 (2000) ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search." (emphasis added)).[1] Additionally, the State concedes that Deputy Kriese did not independently observe any criminal activity or erratic driving on Stanage's part.[2] Thus, the stop was predicated entirely on the conclusory assertion of unidentified-but-identifiable informants and a positive identification of Stanage's vehicle.

         [¶9.] The initial question in cases like this is whether the tip is credible. Navarette, U.S.__at__, 134 S.Ct. at 1688. The State contends that a finding of reasonable suspicion is supported because the informants were identifiable. Stanage contends that "[t]he call to Brookings dispatch that Deputy Kriese relied on was an anonymous tip." The credibility of an informant is enhanced when the informant places his anonymity at risk. See id. at, 134 S.Ct. at 1689-90. While "an unnamed individual who divulges enough distinguishing characteristics to limit his possible identity to only a handful of people may be nameless, . . . he is capable of being identified and thus is not anonymous." United States v. Sanchez, 519 F.3d 1208, 1213 (10th Cir. 2008) (quoting United States v. Brown, 496 F.3d 1070, 1075 (10th Cir. 2007)); accord State v. Mohr, 2013 S.D. 94, ¶ 20, 841 N.W.2d 440, 446; see also Navarette, U.S.__ at__, 134 S.Ct. at 1689-90 (considering law enforcement's ability to identify 911 caller as bolstering credibility of an unidentified informant). Although Deputy Kriese did not know the specific identities of the informants at the time of the stop, he did know they were Hardee's employees working at the time of the stop. Thus, for purposes of credibility, the informants in this case were not anonymous, which enhances the reliability of the tip.

         [¶10.] Regardless, "[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that 'criminal activity may be afoot.'" Navarette, U.S.__at__, 134 S.Ct. at 1690 (quoting Terry, 392 U.S.at 30, 88 S.Ct. at 1884); accord J.L., 529 U.S. at 272, 120 S.Ct. at 1379. The requirement that an officer have reasonable suspicion prior to a stop is not abrogated simply because a third-party informant is convinced a crime occurred. As noted above, an officer's "mere 'hunch' does not create reasonable suspicion[.]" Navarette, __ U.S. __at__, 134 S.Ct. at 1687. "[N]either does a private citizen's." United States v. Wheat, 278 F.3d 722, 732 (8th Cir. 2001). Even if an informant is credible, "[s]ufficient information must be presented to the [officer] to allow that official to determine [reasonable suspicion]; his action cannot be a mere ratification of the bare conclusions of others." I linois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983) (emphasis added).[3]

         [¶11.] When an officer is not given an "explicit and detailed description of alleged wrongdoing, " Navarette, U.S.__at__, 134 S.Ct. at 1689, the officer must have some other reason to believe the informant's conclusion is correct.

If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of [reasonable suspicion] based on his tip.

Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30; see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (upholding conclusory tip from known informant who had previously given accurate information). Even if an informant has not previously provided information to the officer, the officer's ratification of the informant's conclusion may be objectively reasonable if the officer is aware that the informant has special training or experience relating to the conclusion at issue.[4] In this case, however, the record does not reflect that the informants had previously demonstrated unusual reliability in identifying intoxicated drivers. Even if they had, Deputy Kriese was unaware of the informants' identities at the time he stopped Stanage, so such a circumstance-even if reality-could not possibly have informed Deputy Kriese's reasonable-suspicion determination.[5]

         [¶12.] Even so, the State contends it was reasonable to ratify the informants' conclusion because Deputy Kriese confirmed the identifying detail provided by the informants-i.e., the license-plate number. However, the United States Supreme Court has specifically rejected the notion that ...


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