State v. Faulks, 21628.

• Decision Date: 29 August 2001
• Docket Number: No. 21628.,21628.
• Citation: State v. Faulks, 2001 S.D. 115, 633 N.W.2d 613 (S.D. 2001)
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Tony Alvester FAULKS, Defendant and Appellant.
• Court: South Dakota Supreme Court

633 N.W.2d 613

2001 SD 115

STATE of South Dakota, Plaintiff and Appellee, v. Tony Alvester FAULKS, Defendant and Appellant.

No. 21628.

Supreme Court of South Dakota.

Considered on Briefs on May 29, 2001.

Decided August 29, 2001.

Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.

Julie A. Hofer, Minnehaha County Public, Defender's Office, Sioux Falls, SD, Attorneys for defendant and appellant.

GILBERTSON, Justice.

[¶ 1.] Tony Alvester Faulks was convicted of first-degree robbery and possession of a controlled substance. He appeals claiming evidence against him was obtained in violation of the Fourth Amendment. He also challenges the trial court's refusal to admit evidence of other unsolved robberies in the area. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On November 24, 1997, at approximately 9:15 a.m., Omar's Market in Sioux Falls, SD, was robbed at knife-point by a black male, wearing a dark winter coat, dark pants, with a piece of light colored fabric around his face. After stealing approximately $1,400 from the owners of the store, Kathy and Ron Treloar, the perpetrator fled on foot. Kathy immediately called 911 to report the robbery, and a description of the suspect was dispatched to the Sioux Falls Police Department. The suspect was described as a tall, thin, 25-30 year old black male wearing a dark colored coat, and fleeing on foot.

[¶ 3.] Shortly after receiving this description, Lieutenant Runyan (Runyan) noticed a vehicle approaching from the direction where the robbery had occurred. The vehicle contained two black males, one in the driver's seat, the other in the back seat. Runyan followed the car into a grocery store parking lot, where the car parked. Runyan had not activated his emergency lights or in any way signaled for the driver to stop the vehicle. As the occupants began to exit the vehicle, Runyan approached the vehicle and asked to speak with the driver, Floyd Murphy. Runyan requested that the passenger, Faulks, remain in the vehicle. Murphy explained that Faulks had been at Murphy's home earlier that morning, had left for thirty minutes to an hour, then returned and asked Murphy for a ride in his car. The two men had just left Murphy's home, which is located a short distance from Omar's Market. After Murphy gave permission to search his vehicle, officers found a dark colored coat with an athletic sock in a pocket.

[¶ 4.] At the same time, Faulks was being interviewed by Officer Babekuhl, who had arrived on the scene shortly after Runyan. Faulks' version of the morning's events differed significantly from Murphy's version. When confronted with this discrepancy, Faulks twice changed his story. Because of the changing and still conflicting stories, Runyan and Babekuhl began to suspect Faulks had been involved in the robbery. Babekuhl then asked Faulks to accompany him to the detective bureau. After Faulks refused to do so, Babekuhl performed a pat-down search to insure Faulks did not have the knife used in the robbery in his possession. Babekuhl asked Faulks to place his hands on top of the patrol car. As Babekuhl began the search, Faulks quickly removed his right hand from the top of the patrol car and reached into his right pants pocket. Babekuhl removed Faulks' hand from his pocket and resumed the pat-down. Faulks again inserted his hand into his pants pocket, Babekuhl again removed it, and continued the search. After Faulks reached into his pocket a third time, Babekuhl inserted his own hand into Faulks' pocket and removed a cigarette pack. As the pack was being removed, its lid opened, revealing a crack pipe inside. Faulks was then arrested for possession of a controlled substance and possession of paraphernalia. At the county jail, Faulks was "screen searched," meaning a canvas screen was placed between himself and the jailer while he stripped. After he had removed the last of his clothing, he held $1,300 in his hands.

[¶ 5.] Faulks was subsequently charged with robbery. At trial, the Treloars identified the coat found in Murphy's car, as well as Faulks' shoes, as consistent with the attire of the robber. They also identified the sock found in the coat as the mask used by the robber. The sock was also matched to a piece of fabric found on the market floor after the robbery. Faulks was convicted by a jury of robbery in the first-degree and possession of a controlled substance. He was sentenced by Judge Srstka to 75 years for robbery and six years for possession, sentences to run consecutively. On appeal, Faulks' conviction was reversed and remanded, without opinion, pursuant to State v. Nelson, 1998 SD 124, 587 N.W.2d 439, because Judge Srstka had failed to read instructions on the presumption of innocence and reasonable doubt at the close of evidence.

[¶ 6.] On remand, Faulks' retrial was assigned to Judge Neiles. Faulks filed pretrial motions to suppress evidence, raising the same issues that had been raised and denied prior to the first trial. Judge Neiles declined to reconsider Judge Srstka's ruling on those issues. Faulks was again convicted of robbery and possession of a controlled substance and sentenced to twenty-three years for robbery and five years for possession, sentences to run concurrently. He has appealed, raising the following issues:

1. Whether the investigative stop was supported by a reasonable suspicion.

2. Whether the pat-down search was constitutional.

3. Whether the trial court abused its discretion in refusing to admit evidence of other unsolved robberies committed by black males.

ANALYSIS AND DECISION

[¶ 7.] 1. Whether the investigative stop was supported by a reasonable suspicion.

[¶ 8.] Under the Fourth Amendment to the United States Constitution, an investigative stop is a "seizure" even if its purpose is limited and the detention brief. State v. Lownes, 499 N.W.2d 896, 898 (S.D.1993). Under the protections afforded by the Fourth Amendment, a police officer may stop an individual only if that officer has a reasonable suspicion that a violation has occurred. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610. The reasonable suspicion standard is less stringent than the probable cause required to issue a warrant or make an arrest. Id. Reasonable suspicion requires only that a "stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based on `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995) (citing State v. Anderson, 331 N.W.2d 568, 570 (S.D. 1983)). Reasonable cause need not be based entirely on an officer's personal observation, the necessary facts may be supplied by another person. Id. Such information on its own, if sufficiently reliable, may establish reasonable suspicion. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990). A stop is reasonable if "the officer's action was justified at its inception, and [if] it was reasonably related in scope to the circumstances which justified the interference in the first place." State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993). A finding of reasonable suspicion is based upon factual findings, which are reviewed under the clearly erroneous standard. Lownes, 499 N.W.2d at 898. Ultimately, however, a determination of reasonable suspicion based on those facts is a question of law reviewed de novo. Id.

[¶ 9.] Under this standard, the issue becomes whether Runyan had a specific and articulable suspicion that the occupants of the vehicle had violated the law. We conclude he did. The trial court found that Runyan received a dispatch describing a tall, thin, black man, age 25 to 30, with a dark coat and white material over his face, fleeing on foot. He encountered the vehicle shortly after the robbery. The driver of the car, Murphy, fit the description of the suspect. The car was in the vicinity of the robbery and was traveling away from the scene, in the direction that the suspect had been seen running. Faulks was alone in the backseat, rather than the passenger seat, indicating an attempt to hide. When the vehicle passed Runyan, Faulks turned around to check if Runyan followed the vehicle. While following the vehicle, Runyan noticed Faulks was not wearing a coat, unusual for a cold late-November day. The trial court also found that Murphy had voluntarily stopped the car in the grocery store parking lot.

[¶ 10.] We faced a similar scenario in State v. Krebs, 504 N.W.2d 580 (S.D.1993). In that case, two males and a vehicle suspected in a series of burglaries were described in a police bulletin. Based on the information in that bulletin, Officer Wermer approached a parked vehicle and driver that matched the description in the bulletin, and briefly interviewed the driver. We determined that the seizure was reasonable, based on the information in the police bulletin. Id. at 585. Likewise, this stop was "not the product of mere whim, caprice, or idle curiosity." See Cuny, 534 N.W.2d at 53. Runyan was acting on reliable information and specific, articulable facts that support his reasonable suspicion that a violation had occurred.

[¶ 11.] Faulks argues he did not match the description because he was not wearing a coat and the suspect had fled on foot. When examined under the totality of circumstances standard, as required by White, 496 U.S. at 330,110 S.Ct. at 2416,110 L.Ed.2d at 309, those facts do not alter our conclusion. It is quite possible that mutable characteristics of a suspect, such as attire and mode of transportation may vary significantly during flight from apprehension. We have previously recognized that "[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a ... criminal to escape." State...