State v. Hett

• Decision Date: 03 July 2013
• Docket Number: No. 26532.,26532.
• Citation: 834 N.W.2d 317,2013 S.D. 47
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jason R. HETT, Defendant and Appellant.
• Court: South Dakota Supreme Court

834 N.W.2d 317

2013 S.D. 47

STATE of South Dakota, Plaintiff and Appellee,

v.Jason R. HETT, Defendant and Appellant.

No. 26532.

Supreme Court of South Dakota.

Considered on Briefs May 20, 2013.

Decided July 3, 2013.

Marty J. Jackley, Attorney General, Matt Naasz, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Ronda Miller of Belle Fourche, South Dakota, Attorney for defendant and appellant.

KONENKAMP, Justice.

[¶ 1.] Jason Hett appeals his convictions for driving under the influence of alcohol (DUI) and for an open container violation. He argues that the circuit court erred in denying his motion to suppress evidence obtained after the stop of his vehicle because the law enforcement officer had no reasonable suspicion of a violation of law to support the stop. We affirm, concluding that the circuit court did not err in denying the motion to suppress because the officer had a reasonable suspicion that Hett violated a statute requiring his vehicle to “be driven as nearly as practicable entirely within a single lane[.]” SDCL 32–26–6.

Facts and Procedural History

[¶ 2.] At 11:30 p.m. on the night of December 3, 2011, South Dakota Highway Patrol Trooper Jody Moody was patrolling in rural Harding County, heading north toward the town of Buffalo. About three miles south of Buffalo, Trooper Moody met and observed a southbound pickup cross the fog line and drive on the shoulder of the highway.¹ Trooper Moody turned his patrol car around, pursued the pickup, and stopped it. On making contact with the driver, later identified as Hett, Moody detected the odor of an alcoholic beverage.

[¶ 3.] Trooper Moody was quickly joined at the scene by Trooper Jonathan Deuter, another South Dakota Highway Patrol Trooper patrolling in the area. Trooper Moody turned Hett over to Trooper Deuter to investigate Hett for DUI. Trooper Deuter proceeded to interview Hett, to administer a series of field sobriety tests, and to have him take a preliminary breath test. The breath test indicated a result of 0.20% and, based upon that and the other results of the investigation, Trooper Deuter arrested Hett for DUI. A search was then conducted of Hett's pickup and an open can of beer was found inside. Hett was transported to the Meade County jail where blood was drawn for a blood alcohol test that later indicated a result of 0.211% by weight of alcohol in the blood.

[¶ 4.] Hett was charged by information with: one count of DUI by driving or actual physical control of a vehicle while under the influence of alcohol; an alternative count of DUI by driving or actual physical control of a vehicle while having 0.08% or more by weight of alcohol in the blood; one count of not driving properly in his lane; and one count of open container. A part two habitual offender information was also filed alleging that Hett had one prior DUI conviction.

[¶ 5.] Hett moved to suppress all the evidence obtained as a result of the stop of his vehicle on the basis that the State did not have sufficient cause for the stop. After an evidentiary hearing, the circuit court entered findings of fact, conclusions of law and an order denying the motion to suppress on the basis that Hett's crossing of the fog line provided reasonable suspicion of a violation of law necessary to support the stop.

[¶ 6.] At his jury trial, Hett was found guilty of DUI by driving or actual physical control of a vehicle while having 0.08% or more by weight of alcohol in the blood and one count of open container. The jury acquitted Hett of the remaining charges including the lane violation. A court trial was later held on the allegations of the part two habitual offender information, and the court adjudicated Hett guilty of second offense DUI. He was sentenced to ninety days in the county jail for the DUI with eighty days suspended on various conditions including payment of a $500 fine. In addition, Hett was fined $54 for his open container violation. He appeals.²

Analysis and Decision

[¶ 7.] Hett contends that a “vehicle driving over the fog line when meeting a law enforcement vehicle” will not “provide law enforcement with sufficient cause to justify a traffic stop.” Generally, the Constitution's Fourth Amendment prohibition against unreasonable searches and seizures applies to motor vehicle stops and law enforcement must obtain a warrant to support a stop. Rademaker, 2012 S.D. 28, ¶¶ 8–9, 813 N.W.2d at 176. “However, as an exception to this general rule, an officer may stop a car, without obtaining a warrant, if there is ‘reasonable suspicion ... that criminal activity may be afoot.’ ” Id. ¶ 9 (quoting Wright, 2010 S.D. 91, ¶ 10, 791 N.W.2d at 794). An officer's observation of “a traffic violation, however minor,” provides reasonable suspicion of a violation of law sufficient to support a traffic stop.³See State v. Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d 125, 128 (citing State v. Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414).See also State v. Lockstedt, 2005 S.D. 47, ¶ 17, 695 N.W.2d 718, 723 (stating that, “a traffic violation, however minor, is sufficient to justify the stop of a vehicle.”). “ ‘Therefore, the basis needed for a traffic stop is minimal.’ ” Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d at 128 (quoting Lockstedt, 2005 S.D. 47, ¶ 16, 695 N.W.2d at 722).

[¶ 8.] Referred to as the “practicable lane statute” in some jurisdiction, see State v. Wolfer, 780 N.W.2d 650, 652 (N.D.2010), South Dakota's version, SDCL 32–26–6, provides:

On a roadway divided into lanes, a vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from such lane until the driver has first ascertained that such movement can be made with safety. A violation of this section is a Class 2 misdemeanor.

[¶ 9.] The circuit court found as a fact that Trooper Moody observed a single instance where Hett's vehicle crossed over the fog line and was driven on the shoulder of the road.⁴ The court reasoned that this constituted observation of a violation of SDCL 32–26–6, and when an officer “has specific and articulable facts which taken together with the rational inferences from those facts,” it reasonably warranted Trooper Moody's stop of Hett's vehicle. On that basis, the circuit court denied Hett's motion to suppress. Hett argues on appeal that the circuit court erred in concluding that a single instance of crossing the fog line violates SDCL 32–26–6. If that were so, Hett asserts “every slow moving vehicle, wide load, or traveler that moves over to the right whether it be defensive driving or to avoid a wide load, would be in violation.”

[¶ 10.] There is a division of authority on this issue. The State cites United States v. Herrera Martinez, in which the Eighth Circuit upheld a traffic stop based upon a single instance of a vehicle crossing the fog line in “violation of a South Dakota statute requiring [drivers] to stay ‘as nearly as practicable’ within one traffic lane.” ⁵354 F.3d 932, 934 (8th Cir.2004)vacated on other grounds549 U.S. 1164, 127 S.Ct. 1125, 166 L.Ed.2d 889 (2007). In United States v. Carrasco–Ruiz, the United States District Court for South Dakota relied on Herrera Martinez in observing that, “in South Dakota, crossing the fog line is a violation of SDCL 32–26–6” that provides probable cause for a traffic stop.⁶587 F.Supp.2d 1089, 1099 (D.S.D.2008). In State v. Magallanes, the Nebraska Supreme Court cited Herrera Martinez for the point that, “crossing [the] fog line one time [is] sufficient probable cause to stop [a] vehicle under South Dakota law.” 284 Neb. 871, 824 N.W.2d 696, 701 (2012). But the stop upheld in Magallanes was the result of two instances of crossing the fog line. See id. at 698. Further, the stop was made under a statute prohibiting driving on the shoulder of a highway rather than a practicable lane statute like South Dakota's. See id.

[¶ 11.] Hett cites United States v. Herrera–Gonzalez, however, in that case the Eighth Circuit actually upheld a vehicle stop based upon an officer's observation of a vehicle crossing a fog line once for ten to fifteen seconds. 474 F.3d 1105, 1107 (8th Cir.2007). The stop was made under an Iowa practicable lane statute similar to South Dakota's. See id. In reaching its decision, the Eighth Circuit considered a number of factors including: the duration of the crossing; the time of day; the weather conditions; whether a full lane of travel was available to the driver; and the existence of “adverse conditions that would have made it impractical for [the driver] to keep his car in the lane[.]” Id. at 1110–11. The weight of these factors convinced the court that the officer had a “reasonable basis to believe that a violation of the Iowa Statute had occurred,” although it was “a relatively close question[.]” Id. at 1111.

[¶ 12.] Hett relies strongly on United States v. Freeman in which the Sixth Circuit invalidated the traffic stop of a motor home under Tennessee's practicable lane statute where the motor home “briefly” crossed the white line separating the right-hand lane of traffic from an emergency lane. 209 F.3d 464, 466 (6th Cir.2000). In invalidating the stop, the court observed that it could not “agree that one isolated incident of a large motor home partially weaving into the emergency lane for a few feet and an instant in time constitute[d] a failure to keep the vehicle within a single lane ‘as nearly as practicable.’ ” Id. (quoting United States v. Gregory, 79 F.3d 973, 978 (10th Cir.1996)).⁷

[¶ 13.] In Wolfer, the North Dakota Supreme Court reviewed numerous divergent authorities such as those above and upheld a vehicle stop based upon a single instance of a vehicle crossing a fog line in violation of a statute nearly identical to SDCL 32–26–6. 780 N.W.2d 650. While “mindful of [the] body of law addressing [similar] issues,” the court joined jurisdictions focusing their analysis “on the reasonableness of an officer's suspicion in light of the facts surrounding...