State v. Herren
| Decision Date | 22 December 2010 |
| Docket Number | No. 25614.,25614. |
| Citation | 792 N.W.2d 551,2010 S.D. 101 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Annette M. HERREN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
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.
[¶ 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.
[¶ 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"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:
[¶ 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.
[¶ 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 basisfor suspecting legal wrongdoing under the totality of the circumstances?
[¶ 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 885, 888 (citations omitted). We determine reasonable suspicion based on an objective standard. State v. Hodges, 2001 S.D. 93, ¶ 16, 631 N.W.2d 206, 210-11. 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." State v. Akuba, 2004 S.D. 94, ¶ 15, 686 N.W.2d 406, 413 (citation omitted). "[I]n making a reasonable suspicion determination, we must [l]ook 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." Bergee, 2008 S.D. 67, ¶ 10, 753 N.W.2d at 914 (citations omitted). "The stop may not be the product of mere whim, caprice or idle curiosity." Id.
The delay at the stop sign, alone, did not create reasonable suspicion.
[¶ 9.] The trial court determined that the delay at the stop sign created reasonable suspicion of criminal activity. Although the law does not specify how long a vehicle should stop at a stop sign, the officer testified that, based on his training and experience, a lengthy stop at a stop sign is an indication of impaired driving. Herren points out that the officer did not "see her driving erratically or irregularly, and he did not see her violate any traffic laws." Thus, Herren refutes the officer's claim that the delayed stop created reasonable suspicion of impaireddriving. The State, however, does not claim that the delayed stop by itself created reasonable suspicion, but that the delayed stop was a factor to consider under the totality of the circumstances.
[¶ 10.] We first address whether Herren's delayed stop created reasonable suspicion as the trial court determined. Other jurisdictions, under similar facts, have found delayed stops at stop signs insufficient to create reasonable suspicion to stop a vehicle. In State v. Fields, the Wisconsin Court of Appeals held that a five-to-ten-second delay at a stop sign in a rural area without other traffic was not, by itself, sufficient to permit an officer to lawfully stop a vehicle. 239 Wis.2d 38, 47, 619 N.W.2d 279, 284 (2000). The Fields court reasoned that even though the officer believed, based on his training and experience, that stopping at a stop sign for an extended time was an indication of illegal activity, such an extended stop was not a "specific and articulable fact" to "justify reasonable suspicion that Fields had committed or was committing an unlawful act." Id. at 48, 619 N.W.2d at 285.
[¶ 11.] In State v. Hein, the Washington Court of Appeals held that a five-to-seven-second delay at a stop sign did not give an officer reasonable suspicion. 113 Wash.App. 1006, 2002 WL 1825752 (Wash.Ct.App.). In Hein, the court determined that a vehicle's delay before turning at a stop light after the light turned green was not, by itself, enough to support reasonable suspicion. Id. As support for its holding, Hein cited State v. DeArman, 54 Wash.App. 621, 625, 774 P.2d 1247, 1249 (1989). In DeArman, the Washington Court of Appeals held that "the simple fact that [Defendant]...
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