State v. Herren, No. 25614.

CourtSupreme Court of South Dakota
Writing for the CourtMEIERHENRY
Citation792 N.W.2d 551,2010 S.D. 101
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Annette M. HERREN, Defendant and Appellant.
Decision Date22 December 2010
Docket NumberNo. 25614.
792 N.W.2d 551
2010 S.D. 101


STATE of South Dakota, Plaintiff and Appellee,
v.
Annette M. HERREN, Defendant and Appellant.


No. 25614.

Supreme Court of South Dakota.

Considered on Briefs Nov. 15, 2010.
Decided Dec. 22, 2010.

792 N.W.2d 552

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

Michael E. McCann of McCann, Ribstein & McCarty, P.C., Brookings, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] A Brookings County Deputy Sheriff stopped Annette Herren's vehicle primarily because of his observation that it hesitated too long (about 40 seconds) at a stop sign at a rural intersection. The stop resulted in Herren's arrest for driving while under the influence of alcohol. Herren challenges the constitutionality of the investigatory stop, claiming that the arresting officer did not have reasonable suspicion to stop her. The trial court determined that the officer had reasonable suspicion based on her delay at the stop sign. Herren appeals the trial court's ruling. We hold that the totality of the circumstances—the stop-sign delay along with an anonymous tip concerning a possible drunk driver—provided the officer with reasonable suspicion to proceed with the investigatory stop. Affirmed.

FACTS

[¶ 2.] The facts surrounding the stop are not disputed. At approximately 9:00 p.m. on August 2, 2009, the officer received a radio communication from dispatch that an anonymous male had called to report that a possible drunk driver would be driving on Highway 14 from Flandreau, South Dakota, to Toronto, South Dakota. The anonymous caller described the vehicle as a "blue Ford Durango." In response, the officer drove to a rural intersection at Highway 14 and 478th Avenue between Flandreau and Toronto. The officer parked his patrol car and waited.

[¶ 3.] The officer eventually saw a vehicle approach the intersection and stop at the stop sign. He testified at the preliminary hearing that "when [the vehicle] came to stop at the stop sign it appeared to be a Dodge Durango." The vehicle remained stopped for approximately 40 seconds. After the vehicle began to drive through the intersection, the officer immediately

792 N.W.2d 553
"pulled in behind the vehicle, activated [his] red lights ... and made a traffic stop on the vehicle." The officer said he made the traffic stop because the driver stopped too long at the intersection for no apparent reason.

[¶ 4.] At the suppression hearing, the officer explained why he stopped Herren:

State's Attorney: At the preliminary hearing, [Deputy], you had testified that you would have stopped this vehicle even though without any prior warning that the driver might have been intoxicated; do you remember that?
Deputy: Yes, I do.
State's Attorney: And I believe you testified that was because of the length of this stop?
Deputy: That is correct.
State's Attorney: And why would you have stopped the vehicle as a result of that?
Deputy: Through my training and experience the length of stop as this one has, excuse me, as this one, that is an indicator of a possible impaired driver.
State's Attorney: That is something that you learned through your training and experience?
Deputy: Yes, sir.
State's Attorney: And from what you had observed there was no reason for this vehicle to stop at this stop sign for some 45 seconds? 1
Deputy: That is correct.
State's Attorney: There was no traffic to prevent the driver from proceeding?
Deputy: No, there was not.
...
(on cross-examination)
Herren's Attorney: And so the only reason you stopped her was because she stopped at the stop sign for some 30 seconds or so?
...
Deputy: The reason I stopped the vehicle was for the extended period of time that she stopped at the stop sign, being an indicator of impaired driving.
Herren's Attorney: And that's the only reason you stopped her, wasn't it?
Deputy: I was acting on the possible anonymous tip of an impaired driver with the vehicle matching the description as a Durango and the length of the stop, that's why I stopped her.

[¶ 5.] Relying on the officer's testimony, the trial court found that the officer "stopped [Herren's] vehicle because of its inordinate delay at the stop sign and not because of the anonymous tip." Based on its findings, the trial court concluded:

That the fact that the vehicle was stopped at the stop sign for longer than the amount of time normally used considering the total lack of any traffic which would have warranted such extended stopping time constituted an articulable fact which under the totality of the circumstances warranted the Deputy's actions; the stop was not the product of mere whim, caprice or idle curiosity.

ISSUE

[¶ 6.] Did the officer have reasonable suspicion to make an investigatory stop of Herren's vehicle, that is, did the officer have a particularized and objective basis

792 N.W.2d 554
for suspecting legal wrongdoing under the totality of the circumstances?

ANALYSIS

[¶ 7.] We review the trial court's findings of fact under the clearly erroneous standard and the conclusions of law de novo. State v. Sound Sleeper, 2010 S.D. 71, ¶ 12, 787 N.W.2d 787, 790 (citing State v. Ludemann, 2010 S.D. 9, ¶ 14, 778 N.W.2d 618, 622). The parties do not challenge the trial court's findings as clearly erroneous. Because constitutional questions are reviewed de novo, we are not bound by the trial court's reasoning. State v. Wendling, 2008 S.D. 77, ¶ 8, 754 N.W.2d 837, 839. An investigatory traffic stop must be "based on objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring." State v. Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d 911, 914. The United States Supreme Court directs reviewing courts as follows:

When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." Although an officer's reliance on a mere " 'hunch' " is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.
United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (citations omitted).

[¶ 8.] Recognizing that the term "reasonable suspicion" cannot be precisely defined, we have said that it "is a common-sense and non-technical concept dealing with the practical considerations of everyday life." State v. Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d...

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16 practice notes
  • State v. Burkett, No. 26812.
    • United States
    • Supreme Court of South Dakota
    • June 25, 2014
    ...articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.’ ” State v. Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (quoting State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406, 413). “The stop may not be the product of mere whim, c......
  • State v. Hett, No. 26532.
    • United States
    • Supreme Court of South Dakota
    • July 3, 2013
    ...existed based on the ‘totality of the circumstances.’ ” Rademaker, 2012 S.D. 28, ¶ 12, 813 N.W.2d at 177 (quoting State v. Herren, 2010 S.D. 101, ¶ 14, 792 N.W.2d 551, 556). This review is not limited to evidence considered at the suppression hearing, but may extend to evidence produced at ......
  • State v. Tenold, #28725
    • United States
    • Supreme Court of South Dakota
    • December 18, 2019
    ...S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981) ). "The stop may not be the product of mere whim, caprice or idle curiosity." State v. Herren , 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (citation omitted). However, "it is enough that the stop is based upon ‘specific and articulable facts which taken......
  • State v. Meyer, No. 27218.
    • United States
    • Supreme Court of South Dakota
    • July 22, 2015
    ...quantity and quality of the tipster's information.” State v. Burkett, 2014 S.D. 38, ¶ 47, 849 N.W.2d 624, 636 (quoting State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556 ). [¶ 14.] Here, Dunteman was an on-duty, student-patrol officer, not just an anonymous tipster.2 Officer Anderson......
  • Request a trial to view additional results
17 cases
  • State v. Burkett, No. 26812.
    • United States
    • Supreme Court of South Dakota
    • June 25, 2014
    ...articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.’ ” State v. Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (quoting State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406, 413). “The stop may not be the product of mere whim, c......
  • State v. Hett, No. 26532.
    • United States
    • Supreme Court of South Dakota
    • July 3, 2013
    ...existed based on the ‘totality of the circumstances.’ ” Rademaker, 2012 S.D. 28, ¶ 12, 813 N.W.2d at 177 (quoting State v. Herren, 2010 S.D. 101, ¶ 14, 792 N.W.2d 551, 556). This review is not limited to evidence considered at the suppression hearing, but may extend to evidence produced at ......
  • State v. Rosa, 29832-a-SRJ
    • United States
    • Supreme Court of South Dakota
    • December 14, 2022
    ...and deductions about the cumulative information available to them that 'might well elude an untrained person.'" State v. Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d 551, 554 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)). "To determi......
  • State v. Tenold, #28725
    • United States
    • Supreme Court of South Dakota
    • December 18, 2019
    ...695, 66 L. Ed. 2d 621 (1981) ). "The stop may not be the product of mere whim, caprice or idle curiosity." State v. Herren , 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (citation omitted). However, "it is enough that the stop is based upon ‘specific and articulable facts which ta......
  • Request a trial to view additional results

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