State v. Barton

• Citation: 2001 SD 52,625 N.W.2d 275
• Decision Date: 25 April 2001
• Docket Number: No. 21493.,21493.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Mark L. BARTON, Defendant and Appellant.
• Court: Supreme Court of South Dakota

625 N.W.2d 275

2001 SD 52

STATE of South Dakota, Plaintiff and Appellee, v. Mark L. BARTON, Defendant and Appellant.

No. 21493.

Supreme Court of South Dakota.

Argued November 30, 2000.

Decided April 25, 2001.

Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.

William G. Taylor and Debra S. Sittig of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, Attorneys for defendant and appellant. LIEBERMAN, Circuit Judge.

[¶ 1.] Mark L. Barton (Barton) was found guilty of an overweight truck violation and fined a total of $11,425. We affirm.

FACTS

[¶ 2.] Barton is a twenty-five year old farmhand employed by Alan Aughenbaugh and Sons. Aughenbaugh and Sons is a large farming operation in the Iroquois, South Dakota area. It employs fifteen people, has a seed and fertilizer dealership and an electronic development business.

[¶ 3.] On April 1, 1999, motor carrier enforcement officer Harlin Wipf was eastbound on U.S. Highway 14 near mile marker 368 in the Iroquois vicinity. He noticed a tractor approaching him from approximately a quarter mile away. Shortly thereafter, he observed that the tractor was pulling a grain cart. The tractor was a Steiger four wheel drive and it was pulling a Kinze 1200 grain cart.

[¶ 4.] Officer Wipf turned around and followed the grain cart in order to determine if it was loaded or empty. He noted that the tires were squatted and that the cart did not bounce and he felt the cart was obviously loaded. He also determined that the cart had a single axle. Wipf was aware that SDCL 32-22-16 permitted only twenty thousand pounds on a single axle. Because of the size of the cart, he felt that the weight of the cart alone would constitute the majority of the allowed weight under the statute. Based on these observations, Wipf stopped the vehicle.

[¶ 5.] As Officer Wipf approached the tractor, he thumped the side of the cart three or four times with his fist. Upon reaching the cab of the tractor, he encountered the driver, Barton. When asked if the cart was loaded, Barton responded that he had a partial load. Barton unrolled the tarp covering the cart so Officer Wipf could look inside. Wipf testified that the cart was three-fourths or more full of wheat. Officer Wipf then asked Barton if he could weigh the cart and Barton agreed.

[¶ 6.] Officer Wipf weighed the cart using portable scales that are certified twice a year. A separate scale was placed under each of the four tires of the cart. The four separate numbers were added to arrive at 66,700 pounds. The amount of allowable weight for a single axle under SDCL 32-22-16 is 20,000 pounds. However, agricultural products are given a five percent weight tolerance so they are allowed 21,000 pounds. The citation Wipf issued alleged that the cart was 45,700 pounds overweight.

[¶ 7.] At trial, Barton argued that the stop was improper and that he should be allowed to have a jury trial. Barton further argued that the cart had two axles instead of one axle as asserted by the state. The trial court held that, because he would not be incarcerated, Barton was not entitled to a jury trial, that there was reasonable suspicion for the stop and that the cart had one axle, not two. At the close of the trial, the trial court imposed a fine and costs of $128 on Barton plus an overweight penalty of twenty-five cents per pound for a total of $11,425.

STANDARD OF REVIEW

We recently clarified our standard of review. See State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488; State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603. Fact findings are reviewed for clear error, but ultimately, in reviewing decisions on motions to suppress for asserted constitutional violations our standard of review is de novo. Stanga, 2000 SD 129, ¶ 8,617 N.W.2d at 488 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)).

State v. Morato, 2000 SD 149, ¶ 10, 619 N.W.2d 655, 659.

[¶ 8.] The proper construction of a statute is a question of law and will be reviewed de novo. Brim v. S.D. Bd. of Pardons and Paroles, 1997 SD 48, ¶ 4, 563 N.W.2d 812, 813. The primary purpose of statutory construction is to determine the intent of the law. See Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17. "`[S]tatutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.'" See id. (quoting U.S. West Communications, Inc. v. Public Utilities Comm'n., 505 N.W.2d 115, 122-123 (S.D. 1993)). "`But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result.'" Id.

ISSUE ONE

[¶ 9.] Whether the stop was constitutional.

[¶ 10.] Barton argues that the proper legal standard necessary to stop his vehicle was probable cause. Although Barton acknowledges that routine traffic stops require only reasonable suspicion, he argues that South Dakota requires a higher standard to stop and weigh a vehicle. In support of this proposition, he cites SDCL 32-22-50 which states:

Any peace officer having reason to believe that the weight of a vehicle and load is unlawful is authorized to weigh the same either by means of portable or stationary scales and may require that such vehicle be driven to the nearest scales in the event such scales are within five miles.

Barton argues the operative language is "reason to believe." Barton cites several cases equating reason to believe with probable cause.

[¶ 11.] Barton's argument is misplaced. First of all, the statute provides that "[a]ny peace officer having reason to believe that the weight of a vehicle and load is unlawful is authorized to weigh the same..." SDCL 32-22-50 (emphasis added). Even if we assume that "reason to believe" as used in this statute does equal probable cause, the statute mentions nothing of the initial stop. It would simply apply to weighing the vehicle.

[¶ 12.] Moreover, even reasonable suspicion is not necessary to stop a vehicle in this context. In Ritter v. Johnson, 465 N.W.2d 196, 197 (S.D.1991), Darrell Johnson, a civilian employee of the Motor Carrier Division of the South Dakota Highway Patrol, stopped the vehicle driven by Ritter and instructed him to return to a weigh station for weighing. As Ritter attempted to turn his vehicle around, the truck rolled over injuring Ritter and damaging the truck.¹ Ritter argued that since Johnson had no reason to believe he was in violation of any law that Johnson exceeded the scope of his authority under SDCL 32-22-50. Id. at 198 n. 1. In response to Ritter's claim that he was deprived of his constitutional right to be free from unreasonable seizure, we noted:

Assuming without deciding that Johnson's order to Ritter which prompted Ritter to try to turn his truck around constituted a "seizure" within the meaning of the Fourth Amendment, such a seizure is clearly not an unreasonable seizure in view of the "closely regulated" nature of the trucking industry. The state has a "substantial interest" in enforcing its truck inspection regulatory scheme; warrantless inspections are "necessary to further the regulatory scheme"; and there is sufficient "certainty and regularity" in the application of the regulatory scheme to provide a "constitutionally adequate substitute for a warrant."

Id. at 199-200 (quoting New York v. Burger, 482 U.S. 691, 702-703, 107 S.Ct. 2636, 2643-44, 96 L.Ed.2d 601 (1987)). As Barton was also stopped pursuant to SDCL 32-22-50, the same reasoning applies here. Thus, assuming, arguendo, that there was a seizure of Barton, it would not be unreasonable given the closely regulated nature of the trucking industry.

[¶ 13.] In addition to the closely regulated nature of the trucking industry, reasonable suspicion also existed to stop Barton. "`The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and is implicated when a vehicle is stopped.'" State v. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d 468, 470 (citations omitted). "A police officer must have a reasonable suspicion to stop an automobile. This has been further interpreted to require the officer to have a `specific and articulable suspicion of a violation before a[n] [automobile] stop will be justified.'" Id. (quoting State v. Cuny, 534 N.W.2d 52, 53 (1995)). The requisite level of suspicion necessary to effectuate the stop of a vehicle is not equivalent to probable cause necessary for an arrest or a search warrant. See State v. Sleep, 1999 SD 19, ¶ 7, 590 N.W.2d 235, 238. "The factual basis needed to support a traffic stop is minimal." Id.

[¶ 14.] The state has a substantial interest in protecting its highways from overweight violations. Stops of certain vehicles are necessary to ensure that the vehicles are within statutorily prescribed limits. Officer Wipf noted the sheer size of the grain cart and surmised that, even if it was only partially loaded, it would be in violation of the statute. Officer Wipf also observed that the tires were squatted and that the cart did not bounce. In his experience, an unloaded cart would not display these properties. Officer Wipf testified that he felt that the cart was obviously loaded.

[¶ 15.] Officer Wipf could not, however, determine whether the pictures of the grain cart admitted into evidence depicted a loaded or empty cart. Importantly, the pictures gave only a still shot of the cart from which no determination could be made on the bounce of the cart. Additionally, the picture of the loaded grain cart was taken in a field and the bottom of the tires could not be seen. Officer Wipf testified "[b]ecause it is sitting on dirt, you can't tell if it is sunk in, it's not like it's sitting on a black—or cement road. You have that sitting in the field." The trial court found that, at the time of the stop (the relevant time in question) Officer Wipf noticed that the tires were...