OCTOBER 5, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS, SOUTH DAKOTA HONORABLE GREGORY J. STOLTENBURG
J. JACKLEY Attorney General CRAIG M. EICHSTADT Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
M. MCCARTY BENJAMIN KLEINJAN of Helsper, McCarty &
Rasmussen, P.C. Brookings, South Dakota Attorneys for
defendant and appellant.
GILBERTSON, CHIEF JUSTICE.
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.
and Procedural History
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.
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.
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.
Stanage appeals, raising one issue: Whether Deputy Kriese had
reasonable suspicion to justify the traffic stop.
"[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).
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)).
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)). Additionally, the State
concedes that Deputy Kriese did not independently observe any
criminal activity or erratic driving on Stanage's
part. Thus, the stop was predicated
entirely on the conclusory assertion of
unidentified-but-identifiable informants and a positive
identification of Stanage's vehicle.
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.
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).
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
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. 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
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 ...