State v. Bowers, 28353

CourtSupreme Court of South Dakota
Writing for the CourtJENSEN, Justice
Citation915 N.W.2d 161
Parties STATE of South Dakota, Plaintiff and Appellee, v. Kelso BOWERS, Defendant and Appellant.
Docket Number28353
Decision Date27 June 2018

915 N.W.2d 161

STATE of South Dakota, Plaintiff and Appellee,
v.
Kelso BOWERS, Defendant and Appellant.

28353

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS MARCH 19, 2018
OPINION FILED June 27, 2018


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

915 N.W.2d 163
¶ 1.] 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.

[915 N.W.2d 164

Analysis

1. Whether Officer Coppersmith lacked reasonable suspicion to initiate an investigatory traffic stop.

¶ 7.] Bowers first claims that Officer Coppersmith’s testimony was "highly suspect" because Officer Coppersmith admitted he was five blocks away when he observed the vehicle cross the center line and because the police video recording did not start until after Officer Coppersmith claims to have observed this violation. Bowers also claims the police video recording of the traffic stop conflicts with Officer Coppersmith’s testimony because it does not show any traffic violations. Bowers asserts the video shows he was a couple of feet away from the barrier, and thus he could not have crossed the white line. Bowers also points to Officer Coppersmith’s testimony that "the video is not as good as my own eyes," and "from what I observed, compared to the video," the vehicle was "two to three inches ... from the median." Bowers claims this demonstrates that Officer Coppersmith recognized that his testimony was inconsistent with events shown on the patrol vehicle camera. Bowers also presented testimony from the passenger in his vehicle who testified that Bowers did not cross the centerline and was not swerving within the lane of traffic.

[¶ 8.] The State responds that the circuit court is the finder of fact and sole judge of the credibility of a witness. The State argues that the circuit court’s findings of fact supporting reasonable suspicion were not clearly erroneous. The State claims the circuit court properly relied on both Officer Coppersmith’s testimony and the video evidence.

[¶ 9.] "We review the denial of [a] motion to suppress based on the alleged violation of a constitutionally protected right as a question of law by applying the de novo standard of review." State v. Doap Deng Chuol , 2014 S.D. 33, ¶ 19, 849 N.W.2d 255, 261. "[W]e review findings of fact under the clearly erroneous standard." Id. (quoting State v. Lamont , 2001 S.D. 92, ¶ 12, 631 N.W.2d 603, 607 ).

"A finding is clearly erroneous only if, after reviewing the evidence in its entirety, ‘we are left with a definite and firm conviction that a mistake was made.’ " State v. Ballard , 2000 S.D. 134, ¶ 9, 617 N.W.2d 837, 840 (quoting State v. Almond , 511 N.W.2d 572, 574 (S.D. 1994) ). Once the facts have been correctly ascertained, we review the circuit court’s application of those facts de novo. State v. Babcock , 2006 S.D. 59, ¶ 12, 718 N.W.2d 624, 628. As such, determinations of reasonable suspicion are also reviewed de novo on appeal. Ballard , 2000 S.D. 134, ¶ 9, 617 N.W.2d at 840.

[¶ 10.] "The Fourth Amendment’s prohibition against unreasonable searches and seizures applies when a car is stopped by law enforcement." State v. Burkett , 2014 S.D. 38, ¶ 44, 849 N.W.2d 624, 635 (quoting State v. Rademaker , 2012 S.D. 28, ¶ 8, 813 N.W.2d 174, 176 ). A police officer "may stop a car, without obtaining a warrant, if there is reasonable suspicion that criminal activity may be afoot." Id. ¶ 45, 849 N.W.2d at 635 (quoting Rademaker , 2012 S.D. 28, ¶ 9, 813 N.W.2d at 176 ). "Reasonable suspicion to stop must be based on specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. (quoting State v. Herren , 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 ).

[¶ 11.] This Court looks to the "totality of the circumstances of each case to see whether the detaining officer [had] a particularized and objective basis for suspecting legal wrongdoing." State v. Olson , 2016 S.D. 25, ¶ 5, 877 N.W.2d 593, 595 (quoting

[915 N.W.2d 165

Herren , 2010 S.D. 101, ¶ 7, 792 N.W.2d at 554 ). "The stop may not be the product of mere whim, caprice or idle curiosity." Id. (quoting Herren , 2010 S.D. 101, ¶ 8, 792 N.W.2d at 554 ). However, a police officer may "draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to them." Id. (quoting Herren , 2010 S.D. 101, ¶ 7, 792 N.W.2d at 554 ).

[¶ 12.] The circuit court found that: (1) the stop of Bowers was initiated by a trained law enforcement officer; (2) Officer Coppersmith observed the vehicle leaving a bar early in the morning; (3) Officer Coppersmith observed the vehicle cross the center line of the roadway; (4) the possible crossing of the center line prompted Officer Coppersmith to further monitor the vehicle; and (5) Officer Coppersmith observed the vehicle weaving in its lane of travel and nearly making contact with a concrete barrier. The circuit court discounted the conflicting testimony from the passenger because of bias and the passenger’s limited ability to observe the vehicle’s movements. The court’s...

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10 practice notes
  • State v. Sharpfish, 28705
    • United States
    • Supreme Court of South Dakota
    • August 14, 2019
    ...2012 S.D. 83, ¶ 20, 824 N.W.2d 102, 108 (internal quotation marks and citations omitted). See also State v. Bowers , 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166. "This Court is bound by the actual language of applicable statutes and their intent is determined from what the Legislature said......
  • State v. Thoman, #29151
    • United States
    • Supreme Court of South Dakota
    • February 17, 2021
    ...plain meaning and effect, and read statutes as a whole." Id. ¶ 11, 932 N.W.2d at 139 (quoting State v. Bowers , 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166 ). "[I]f the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resor......
  • Reck v. S.D. Bd. of Pardons & Paroles, 28839
    • United States
    • Supreme Court of South Dakota
    • July 17, 2019
    ...interpretation, we give words their plain meaning and effect, and read statutes as a whole." State v. Bowers , 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166 (quoting Expungement of Oliver , 2012 S.D. 9, ¶ 6, 810 N.W.2d 350, 352 ). "[I]f the words and phrases in the statute have plain me......
  • State v. Short Bull, 28783
    • United States
    • Supreme Court of South Dakota
    • May 15, 2019
    ...a warrant is not required to effect a temporary seizure of a vehicle by means of a traffic stop. State v. Bowers , 2018 S.D. 50, ¶ 10, 915 N.W.2d 161, 164 (citing State v. Burkett , 2014 S.D. 38, ¶ 45, 849 N.W.2d 624, 635 ). Indeed, "the factual basis needed to support a traffic stop i......
  • Request a trial to view additional results
10 cases
  • State v. Sharpfish, 28705
    • United States
    • Supreme Court of South Dakota
    • August 14, 2019
    ...2012 S.D. 83, ¶ 20, 824 N.W.2d 102, 108 (internal quotation marks and citations omitted). See also State v. Bowers , 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166. "This Court is bound by the actual language of applicable statutes and their intent is determined from what the Legislature said......
  • State v. Thoman, #29151
    • United States
    • Supreme Court of South Dakota
    • February 17, 2021
    ...plain meaning and effect, and read statutes as a whole." Id. ¶ 11, 932 N.W.2d at 139 (quoting State v. Bowers , 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166 ). "[I]f the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resor......
  • Reck v. S.D. Bd. of Pardons & Paroles, 28839
    • United States
    • Supreme Court of South Dakota
    • July 17, 2019
    ...interpretation, we give words their plain meaning and effect, and read statutes as a whole." State v. Bowers , 2018 S.D. 50, ¶ 16, 915 N.W.2d 161, 166 (quoting Expungement of Oliver , 2012 S.D. 9, ¶ 6, 810 N.W.2d 350, 352 ). "[I]f the words and phrases in the statute have plain me......
  • State v. Short Bull, 28783
    • United States
    • Supreme Court of South Dakota
    • May 15, 2019
    ...a warrant is not required to effect a temporary seizure of a vehicle by means of a traffic stop. State v. Bowers , 2018 S.D. 50, ¶ 10, 915 N.W.2d 161, 164 (citing State v. Burkett , 2014 S.D. 38, ¶ 45, 849 N.W.2d 624, 635 ). Indeed, "the factual basis needed to support a traffic stop i......
  • Request a trial to view additional results

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