CONSIDERED ON BRIEFS ON MARCH 19, 2018
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT GUSINSKY
J. JACKLEY Attorney General QUINCY R. KJERSTAD Assistant
Attorney General Pierre, South Dakota MARK VARGO JOSHUA
SATTERLEE Pennington County State's Attorney Attorneys
for plaintiff and Rapid City, South Dakota appellant.
ELIZABETH REGALADO Office of the Public Defender for
Pennington County Attorneys for defendant and Rapid City,
South Dakota appellee.
Defendant was arrested and charged in magistrate court for
driving under the influence of alcohol. Defendant filed a
motion to suppress evidence obtained from the stop, arguing
law enforcement lacked reasonable suspicion. The magistrate
court denied defendant's motion, and defendant was
convicted and sentenced after a bench trial. Defendant
appealed to the circuit court, which reversed the magistrate
court's suppression order. The State filed an
intermediate appeal, which we dismiss.
and Procedural History
On August 8, 2015, Officer Garrett Loen, while on patrol in
Rapid City, South Dakota, received a dispatch at 1:45 a.m.
regarding a report of an intoxicated driver getting into a
blue minivan. Officer Loen, who was in the immediate
vicinity, responded to the report and observed a vehicle
matching the description given driving through a strip mall
parking lot. The minivan stopped at the Corner Pantry
gas-station pump. Officer Loen pulled up behind the van and
activated his amber warning lights.
Officer Loen exited his vehicle and approached the driver,
Irwin Sharpfish, who had gotten out and appeared to be
searching for something in the front seat of the minivan.
Officer Loen asked Sharpfish how he was doing and Sharpfish
replied, "I'm doing good." After pausing
briefly, Officer Loen approached Sharpfish and observed that
his eyes appeared bloodshot, he had an odor of alcohol on his
breath and person, he slurred his speech, and he swayed as he
stood. Officer Loen positioned himself between Sharpfish and
the pump, standing about a foot away from Sharpfish.
Sharpfish stated that he was just trying to fuel his car.
Officer Loen explained that he had received a report about an
intoxicated driver, to which Sharpfish responded, "Oh
really." Officer Loen asked Sharpfish whether he had any
identification with him, and Sharpfish produced a Nevada
After examining the license, Officer Loen asked Sharpfish
whether he had been drinking that night. Sharpfish repeatedly
denied that he had, and Officer Loen began asking Sharpfish
whether he would agree to undergo field sobriety tests.
Sharpfish eventually agreed to perform a horizontal gaze
nystagmus test. Based on his observations of signs of
intoxication, Officer Loen placed Sharpfish under arrest for
driving under the influence. A subsequent blood draw taken
pursuant to a warrant revealed that Sharpfish had a
blood-alcohol content of 0.222.
On August 20, 2015, the State charged Sharpfish with driving
under the influence of alcohol in violation of SDCL
32-23-1(2), and, in the alternative, driving with a blood
alcohol content of 0.08 or greater in violation of SDCL
32-23-1(1). On August 25, 2015, the State filed a part II
information alleging a previous conviction of driving under
On April 5, 2016, Sharpfish filed a motion to suppress any
evidence gathered during his encounter with Officer Loen. In
his motion, Sharpfish argued that Officer Loen lacked
reasonable suspicion to justify an investigatory stop.
Sharpfish contended that the encounter amounted to an
unreasonable search and seizure and thus violated his rights
under the Fourth Amendment to the United States Constitution.
[¶7.] On April 19, 2016, the magistrate court held an
evidentiary hearing. Officer Loen testified, and the court
received as an exhibit a DVD containing the dashcam recording
of the encounter. On July 25, 2016, the court denied the
motion to suppress, concluding that before the encounter
evolved into a seizure, Office Loen made observations
justifying a reasonable suspicion of criminal activity.
[¶8.] On September 27, 2016, the magistrate court held a
bench trial and found Sharpfish guilty of driving under the
influence in violation of SDCL 32-23-3. On December 20, 2016,
the court sentenced Sharpfish to 180 days in jail and revoked
his license for one year. The court suspended the sentence
and held the revocation in abeyance until Sharpfish completed
his appeal to the circuit court. On January 3, 2017, the
magistrate court entered a judgment of ...