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State v. Bowers

Supreme Court of South Dakota

June 27, 2018

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
KELSO BOWERS, Defendant and Appellant.

          CONSIDERED ON BRIEFS MARCH 19, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN JUDGE

          JUSTIN L. BELL OF MAY, ADAM, GERDES & THOMPSON LLP PIERRE, SOUTH DAKOTA ATTORNEYS FOR DEFENDANT AND APPELLANT.

          MARTY J. JACKLEY ATTORNEY GENERAL GRANT FLYNN ASSISTANT ATTORNEY GENERAL PIERRE, SOUTH DAKOTA ATTORNEYS FOR PLAINTIFF AND APPELLEE.

          JENSEN, JUSTICE

         [¶l.] Kelso Bowers appeals from an order entering a suspended imposition of sentence after he was found guilty of driving under the influence of alcohol following a trial to the court. Bowers claims the circuit court erred in denying his motion to suppress evidence. We affirm.

         Background

         [¶2.] On July 27, 2016, Pierre Police Officer Lee Coppersmith observed a red pickup leaving Bob's Lounge, a bar in Pierre, around 1:42 a.m. Officer Coppersmith followed the vehicle along Dakota Avenue and testified that he observed the pickup cross the centerline, traveling to a point where half of the vehicle was in the wrong lane of traffic. Officer Coppersmith continued to follow the pickup over the Missouri River Bridge between Pierre and Fort Pierre. He testified that he observed the pickup swerve multiple times while on the bridge, at one point coming within inches of a concrete barrier. After crossing the bridge, Officer Coppersmith saw the pickup swerve toward the center median, narrowly miss it, and swerve back toward the middle of the driving lane.

         [¶3.] Officer Coppersmith engaged his lights and pulled the vehicle over. Upon approaching the pickup, he detected the smell of alcohol emanating from the driver, Bowers. Officer Coppersmith observed that Bowers was slurring his speech and had glassy, bloodshot eyes. Officer Coppersmith asked Bowers to come back to the patrol vehicle. After Bowers refused field sobriety tests, Officer Coppersmith placed him under arrest for driving under the influence and transported him to jail.

         [¶4.] Officer Coppersmith drafted an electronic affidavit for a search warrant seeking to obtain a blood sample from Bowers. He attached his electronic signature to the affidavit, emailed it to a Sixth Judicial Circuit magistrate judge, and placed a phone call to the judge. Over the phone, the judge instructed Officer Coppersmith to swear under oath that the contents of the affidavit were true and correct. The judge electronically signed the jurat on the affidavit, affirming that the affidavit had been "subscribed and sworn to" before the magistrate. The magistrate judge then signed the search warrant and emailed the affidavit and warrant back to Officer Coppersmith. After receiving the warrant, a medical professional drew a blood sample from Bowers. The sample was later transported to the State Health Lab, which found Bowers's blood alcohol content to be 0.289%.

         [¶5.] Bowers was charged by information with alternate counts of driving under the influence of alcohol in violation of SDCL 32-23-1(1) or SDCL 32-23-1(2). Bowers filed a motion to suppress all evidence claiming that Officer Coppersmith lacked reasonable suspicion to initiate the traffic stop and that the search warrant for the blood sample was invalid under South Dakota law. The circuit court issued a memorandum opinion denying the motion to suppress. This Court denied a petition for intermediate appeal by Bowers. The case was then tried on stipulated facts and Bowers was found guilty. The circuit court entered an order suspending imposition of sentence.

         [¶6.] Bowers appeals, arguing that Officer Coppersmith lacked reasonable suspicion to initiate an investigatory traffic stop and that the warrant obtained for the blood draw violated the Warrants Clause of the South Dakota Constitution.

         Analysis

         1. Whether Officer Coppersmith lacked reasonable suspicion to ...


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