State v. Herrmann, 22045.

• Decision Date: 02 October 2002
• Docket Number: No. 22045.,22045.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Richard HERRMANN, Defendant and Appellant.
• Court: South Dakota Supreme Court

652 N.W.2d 725

2002 SD 119

STATE of South Dakota, Plaintiff and Appellee, v. Richard HERRMANN, Defendant and Appellant.

No. 22045.

Supreme Court of South Dakota.

Considered on Briefs March 25, 2002.

Reassigned August 5, 2002.

Decided October 2, 2002.

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

Terry J. Sutton and Tracy J. Niemann of Sutton & Bauer Law Office, Watertown, South Dakota, Attorneys for defendant and appellant.

KONENKAMP, Justice (on reassignment).

[¶ 1.] When an officer mistakenly requires an arrested driver to submit to a blood test because a law enforcement dispatcher erroneously reports that the driver has multiple prior convictions, should the trial court suppress the blood test results or simply deprive the prosecution of the use of the statutory presumptions? Because there was no constitutional violation here in seizing the driver's blood, we adhere to our longstanding precedent and hold that the correct sanction for the erroneous seizure is to deny the State the use of the statutory presumptions as evidence. We also determine that the arresting officer had sufficient reasonable suspicion to stop the driver, founded on an anonymous tip and the driver's speeding. We affirm.

Background

[¶ 2.] Trooper Rick Steiner, a thirteen-year veteran of the South Dakota Highway Patrol assigned to the Watertown area, was on duty on the night of October 6, 2000. At the end of his shift at approximately 11:22 p.m., he was pulling into the parking lot of the law enforcement center in Watertown when he received a message from dispatch: an unknown person had called, "advising of a possible intoxicated driver" driving a 1962 yellow Chevrolet pickup southbound on Sioux Conifer Road near Watertown. Dispatch also provided Steiner with the license number of the vehicle. Steiner immediately proceeded west on Highway 20 and, as he approached the intersection with Sioux Conifer Road, he observed the vehicle described by dispatch turn from the road onto the highway. The vehicle pulled into an eastbound lane of the four-lane highway and headed toward Watertown traveling in the opposite direction as Steiner.

[¶ 3.] Steiner met and passed the other vehicle and then made a U-turn through the median and followed it. The trooper confirmed that the license number of the vehicle matched the one given by dispatch and kept pace with it as it passed into a thirty-five mile per hour zone. Steiner was traveling at approximately forty-five miles per hour and used his radar to confirm his own speed. Based upon that information, he formed the opinion that the other vehicle was speeding. Thus, at approximately 11:27 p.m., about five minutes after receiving the initial call from dispatch, Steiner activated his red lights and pulled the speeding vehicle over.

[¶ 4.] Steiner approached the driver, asked for his driver's license, and identified him as Herrmann. When Steiner asked Herrmann if he had been drinking, Herrmann replied that he had not. Nevertheless, Steiner noted that Herrmann had an odor of an alcoholic beverage and watery, glassy eyes. Steiner instructed Herrmann to come back to the patrol car where he asked him how much he had to drink. Herrmann replied that he had a couple of beers. At that point, Steiner could still smell an alcoholic beverage odor, so he asked Herrmann to perform some field sobriety tests. When Herrmann's performance on these tests proved unsatisfactory, Steiner placed him under arrest for driving while under the influence (DUI). Steiner then read Herrmann the implied consent warnings and the Miranda warnings.¹ Herrmann refused to submit to a blood test as requested in the implied consent warnings. However, Steiner was advised by dispatch at about the same time that Herrmann had two DUI convictions in the previous five years. With that information, Steiner informed Herrmann that a blood test was mandatory and took him to the local hospital where blood was drawn.² Herrmann was then transported to a local detention center.

[¶ 5.] Herrmann's blood test yielded a result of 0.171 percent by weight of alcohol. Accordingly, he was charged with one count of driving or actual physical control of a motor vehicle while under the influence of an alcoholic beverage (SDCL 32-23-1(2)). A part two information was also filed alleging that Herrmann had two prior DUI convictions. The information was later amended to allege only one prior conviction. Before trial, Herrmann's counsel moved to suppress all evidence obtained as a result of the stop of Herrmann's vehicle on the basis that the stop was illegal. After a hearing, the trial court entered a memorandum decision, findings of fact, conclusions of law, and an order denying the motion to suppress.

[¶ 6.] On the first day of trial, Herrmann's counsel filed a motion to suppress the blood test results for violation of Herrmann's right to refuse the test. Counsel argued that, despite the dispatcher's advice at the time of the arrest that Herrmann had two prior DUI convictions and thus could not refuse the test, Herrmann had only one prior DUI conviction. Therefore, counsel contended that Herrmann had a right to refuse the blood test and that its administration over Herrmann's refusal required suppression of the results. The trial court denied the motion to suppress. However, the court also denied the State the benefit of a jury instruction on the statutory presumptions of intoxication that result from a blood alcohol test. See SDCL 32-23-7.³ [¶ 7.] Following a jury verdict of guilty, Herrmann admitted his status as a second time DUI offender.⁴ The circuit court sentenced him to ninety days in the county jail with seventy-five days suspended and a fine of $375. He was also required to reimburse certain costs and expenses. Herrmann appeals, asserting two issues: (1) Was the unreliable anonymous tip corroborated by the officer, thereby providing an articulable and reasonable suspicion for the initial stop? (2) Should the blood test result be suppressed due to a State dispatch officer's error, regarding the number of prior DWI convictions, which eliminated Herrmann's right of refusal?

[¶ 8.] Reasonable Suspicion to Stop Vehicle.

[¶ 9.] A motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488 (citations omitted). We review findings of fact under the clearly erroneous standard. Id. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Id.

[¶ 10.] Herrmann argues that trooper Steiner stopped his vehicle without reasonable suspicion of a violation of law and that, as a result, the stop was illegal. See State v. Faulks, 2001 SD 115, ¶ 8, 633 N.W.2d 613, 616

. He contends that the trial court should have suppressed all evidence seized after the stop. Contrary to Herrmann's assertions, however, Trooper Steiner had two reasons for stopping Herrmann's vehicle: the anonymous tip to law enforcement and Herrmann's speeding. The anonymous tip provided trooper Steiner with a reasonable suspicion that Herrmann was driving while under the influence of an alcoholic beverage and gave Steiner an articulable basis to stop the vehicle.

[¶ 11.] A similar case was presented in State v. Olhausen, 1998 SD 120, ¶ 8, 587 N.W.2d 715, 718. In Olhausen, an anonymous caller reported a possible drug deal on East Rice Street in Sioux Falls, named the suspect involved, gave a cursory description of him, described the car involved, and gave its license plate number. These facts were relayed to a law enforcement officer in the area who spotted the car and noted that the front seat passenger fit the description of the suspect. In upholding the stop, we observed:

[The officer] was able to independently corroborate the tip and verify the information before he made the stop: the BMW fit the tipster's description, the license plate number matched the number reported by the tipster, and the car was located close to East Rice Street. Lastly, [the officer] testified that, as he drove by, he could see that the passenger in the front of the vehicle met the description given to him of [the suspect]. The motion to suppress was properly denied.

Id. Almost all these factors are present here. The unique vehicle, a 1962 yellow Chevrolet pickup, fit the tipster's description, the license plate number matched the number reported by the tipster, and the vehicle was located turning off of Sioux Conifer Road, the location identified by the tipster. Clearly the stop was not the product of the trooper's whim, caprice, or idle curiosity. See id.

[¶ 12.] Another similar case was presented in State v. Lownes, 499 N.W.2d 896, 900 (S.D.1993). There, an anonymous caller informed the police dispatcher in Rapid City that he thought someone named Mike had been drinking and was driving under the influence. The caller further informed dispatch that "Mike" did not possess a license, was out on bond from a previous DUI, had just left the Piedmont area driving a Harley Davidson motorcycle with red tanks and black saddlebags, was heading east on Interstate 90 to the West Boulevard exit to Rapid City and that he would proceed to Allen Street. These facts were relayed to a Highway Patrol Trooper and, approximately fifteen minutes later, the trooper stopped a vehicle matching the caller's description in the area the caller had identified. In reviewing the stop on appeal, we wrote:

Trooper Welch received specific information relayed from a concerned citizen about a suspected violation of the law. The information included a description of a distinctive motorcycle, the name of the driver, the location the motorcycle left from, a direction and highway route for the motorcycle, the particular exit the bike would use to exit the highway

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