State Of South Dakota v. Sleeper

Decision Date18 August 2010
Docket NumberNo. 25391.,25391.
PartiesSTATE of South Dakota, Plaintiff and Appellee,v.Alvin R. SOUND SLEEPER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Marty J. Jackley, Attorney General, Kirsten Jasper, Craig M. Eichstadt, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Paul Pietz, Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Sound Sleeper appeals the circuit court's denial of his motion to suppress evidence. We affirm.

FACTS

[¶ 2.] On January 29, 2009, at 1:30 p.m., Rapid City Police Department Detective Kelvin Masur was in the parking lot of an Exxon gas station on 634 East North Street investigating a beer theft complaint. Masur took note of a man leaving the gas station carrying a case of beer and a brown bag containing what Masur believed to be a large bottle of beer. The man, eventually identified as Tony Hutchinson, got into the passenger side, front seat of a waiting vehicle. At least two other men were in the vehicle, the driver, Sound Sleeper, and another passenger.

[¶ 3.] According to Masur's testimony, once the man was seated in the vehicle, Hutchinson took the bottle from the brown bag and held it up in the air as if to show it to the occupants of the vehicle. Hutchinson grasped the top of the bottle with one hand over the top of the cap and with the other hand he held the base of the bottle. As he brought the bottle down out of Masur's sight, Hutchinson made a motion that appeared to Masur as though he had opened the bottle. Masur was concerned that what he had observed was a violation of SDCL 35-1-9.1, South Dakota's open container law.*

[¶ 4.] Masur observed the vehicle exit the parking lot. He followed in his unmarked gold Dodge Stratus, which was not equipped with either a siren or roof top lights. Masur did not engage the red and blue lights on the unmarked car's visor or attempt to stop the vehicle. Instead, he called dispatch for a marked patrol car to conduct a stop of the vehicle. However, before the patrol car could be dispatched, the vehicle pulled into another parking lot after traveling approximately two blocks and came to a stop. Masur did not observe the driver commit any traffic violations while following the vehicle.

[¶ 5.] Masur pulled into the lot and parked behind the vehicle. He later testified he was unsure whether there was enough room for the other vehicle to back out and drive off. Masur, in plain clothing, exited his unmarked car, approached the driver's side window, and identified himself as a police officer. Masur's purpose for approaching the vehicle was to follow-up on his observations of Hutchinson's conduct at the Exxon gas station.

[¶ 6.] Masur initially asked the driver, Sound Sleeper, for his driver's license before asking any questions regarding the bottle of beer and whether it was open. Sound Sleeper provided Masur with a South Dakota identification card rather than a driver's license. Masur informed Sound Sleeper and the occupants of the reason for approaching the vehicle. Hutchinson then held up the bottle, which contained beer, and showed Masur that it was still sealed and had never been opened.

[¶ 7.] As the conversation continued, Masur determined that Sound Sleeper's driver's license was under suspension. Masur continued investigating once he realized that Sound Sleeper was driving without a valid license. After engaging Sound Sleeper in further conversation, Masur also noted Sound Sleeper's eyes were glassy and that his breath smelled of alcohol. Sound Sleeper was arrested for driving under the influence after failing field sobriety tests. A subsequent blood test showed his blood alcohol content by weight was .123.

[¶ 8.] Sound Sleeper moved to suppress all evidence seized as a result of the stop, contending it was obtained in violation of the Fourth Amendment. Sound Sleeper argued Masur did not have reasonable suspicion to approach the vehicle and conduct an investigation concerning the open container. He further contended that once the vehicle came to a stop Masur should have questioned Hutchinson, the person Masur observed holding the beer, and not Sound Sleeper as the driver of the vehicle.

[¶ 9.] The circuit court made its ruling on the record after the close of arguments:

The officer demonstrated, you pretty much had to see it, that he's sitting in front of a liquor store. A gentleman comes out with a brown paper bag. It's reasonably articulable suspicion it's got alcohol in it. And then he sees it held up in a vehicle in a manner that it appeared that the cap was about to be twisted off.
It went out of sight, and the officer was evidently fairly certain that he took the cap off, which would make it an open container in the vehicle, in violation of state law.
That he followed up on that. And in following up on that, he approached the parked vehicle. He did not pull it over. He approached the parked vehicle. He asked for identification from the driver. He did not have identification. Well, he did. That's all he had. He didn't have a valid driver's license.

The circuit court denied Sound Sleeper's motion from the bench.

[¶ 10.] Sound Sleeper's objections to the State's proposed findings of fact and conclusions of law were denied. No definitive finding of fact or conclusion of law was entered as to whether Sound Sleeper was seized within the meaning of the Fourth Amendment, although the circuit court's conclusion of law was that Masur had reasonable and articulable suspicion that a crime was being committed.

[¶ 11.] Sound Sleeper was convicted after a bench trial at which time he also admitted to a part two Information alleging two prior DUI convictions. He was sentenced to two years in the South Dakota State Penitentiary. Sound Sleeper appeals, raising the following issues:

1. Whether the officer had reasonable suspicion to approach the occupants of the vehicle to investigate an open container violation.
2. Whether the officer had reasonable suspicion to seize and question Sound Sleeper, the driver of the vehicle, when it was the passenger the officer observed with the beer bottle.

STANDARD OF REVIEW

[¶ 12.] This Court reviews the denial of a motion to suppress alleging a violation of a constitutionally protected right as a question of law by applying the de novo standard.” State v. Ludemann, 2010 SD 9, ¶ 14, 778 N.W.2d 618, 622 (quoting State v. Madsen, 2009 SD 5, ¶ 11, 760 N.W.2d 370, 374). However, we review the circuit court's findings of fact under the clearly erroneous standard without deference to its conclusions of law. Id. (citing State v. Haar, 2009 SD 79, ¶ 12, 772 N.W.2d 157, 162). Furthermore,

This court's function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court's decision.

In re H.L.S., 2009 SD 92, ¶ 11, 774 N.W.2d 803, 807-8 (quoting State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991)) (internal citations omitted).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the officer had reasonable suspicion to approach the occupants of the vehicle to investigate an open container violation.

[¶ 14.] Sound Sleeper argues that he was seized within the meaning of the Fourth Amendment without reasonable suspicion. He further argues that reasonable suspicion existed only as to Hutchinson and that Masur did not employ the least intrusive means to dispel or confirm his suspicions as to Hutchinson. Sound Sleeper also argues that Masur should have approached the passenger side of the car and once he saw the container was closed, Masur should have concluded the seizure. Further error, Sound Sleeper argues, occurred when Masur asked Sound Sleeper as the driver of the vehicle for his license. The State argues that Masur had reasonable suspicion to stop the car. It further argues that it was reasonable for Masur to approach Sound Sleeper as the driver and ask for his license under our traffic stop case law.

The Seizure of the Driver and Passengers

[¶ 15.] The Fourth Amendment's prohibition against unreasonable searches and seizures “requires generally the issuance of a warrant by a neutral judicial officer based on probable cause prior to the execution of a search or seizure of a person.” Id. ¶ 14, 774 N.W.2d at 808 (quoting State v. Mattson, 2005 SD 71, ¶ 29, 698 N.W.2d 538, 548). Law enforcement may, however, perform an “investigative detention” rather than a full-blown custodial arrest based on reasonable suspicion. State v. DeLaRosa, 2003 SD 18, ¶ 7, 657 N.W.2d 683, 685-86 (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968)). An officer may stop a vehicle to either confirm or dispel the suspicion once the reasonable suspicion standard has been satisfied. State v. Quartier, 2008 SD 62, ¶ 10, 753 N.W.2d 885, 888 (citing State v. Herrboldt, 1999 SD 55, ¶ 8, 593 N.W.2d 805, 808).

[¶ 16.] As we have noted on prior occasions, “articulating a precise definition of reasonable suspicion is ‘not possible.’ Id. (quoting State v. Aaberg, 2006 SD 58, ¶ 10, 718 N.W.2d 598, 600). We use a common-sense and non-technical approach to determining reasonable suspicion, one that deals with the practical considerations of everyday life. Id. However, a “stop may not be the product of mere whim, caprice or idle curiosity.” Id. (quoting State v. Akuba, 2004 SD 94, ¶ 15, 686 N.W.2d 406, 413). Reasonable suspicion is satisfied when the stop is based upon ‘specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.’ Id. (quoting Akuba,...

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