State v. Hodges, 21730.

• Decision Date: 18 July 2001
• Docket Number: No. 21730.,21730.
• Citation: 2001 SD 93,631 N.W.2d 206
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Christina HODGES, Defendant and Appellee.
• Court: South Dakota Supreme Court

631 N.W.2d 206

2001 SD 93

STATE of South Dakota, Plaintiff and Appellant, v. Christina HODGES, Defendant and Appellee.

No. 21730.

Supreme Court of South Dakota.

Argued April 26, 2001.

Decided July 18, 2001.

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

Gregory T. Brewers of Frieberg, Rudolph & Nelson, Beresford, SD, Attorneys for defendant and appellee.

SABERS, Justice.

[¶ 1.] Christina Hodges was a passenger in a vehicle stopped for excessive speed. After the vehicle was stopped, Hodges exited the vehicle and proceeded into an adjacent building despite North Sioux City Police Officer Jason Nelson's repeated orders to stop. Officer Nelson followed Hodges and entered the women's restroom to confront her, believing she was attempting to flush a controlled substance. Hodges was placed under arrest for obstruction of a law enforcement officer. The search incident to that arrest revealed a controlled substance. The trial court suppressed the controlled substance, reasoning it was the fruit of the poisonous tree. We reverse and remand.

FACTS

[¶ 2.] On February 16, 2000, between eleven and midnight, Officer Nelson noticed a vehicle traveling in excess of the speed limit. The vehicle stopped in the Dakota Rose Casino parking lot. Officer Nelson pulled into the lot behind the vehicle with his lights activated. The passenger, Hodges, exited the vehicle and began walking toward the casino entrance. The driver of the vehicle also attempted to exit the vehicle. Officer Nelson ordered the driver of the vehicle to remain inside the vehicle. The driver complied with the request.

[¶ 3.] Officer Nelson testified he was approximately fifteen feet from the vehicle and Hodges when he ordered her to stop in a normal tone. When she did not turn or respond and "appeared to walk faster" he increased his tone. Officer Nelson testified "I asked her to stop at least four times prior to her getting to the door." When asked if he was yelling at her, Officer Nelson indicated "the last two or three times I was yelling." Hodges did not stop. She entered the casino door approximately thirty to forty feet away from the officer. Officer Nelson immediately followed Hodges into the casino. "I asked where the female went that came running in here. [The bartender] said she ran towards the bathroom."

[¶ 4.] Officer Nelson pounded on the restroom door, identified himself as a police officer and ordered Hodges out. With no response, Officer Nelson entered the restroom and noticed Hodges standing in a single stall with the door open. Unable to see her hands, he demanded that Hodges show them. Hodges did not comply with this order and instead turned away from him and backed toward the corner of the stall. Losing sight of Hodges and believing she was attempting to conceal something, Officer Nelson entered the stall.

[¶ 5.] He observed Hodges with her pants unbuttoned and partially down. Officer Nelson then ordered her to pull up her pants. After no response, he pulled up her pants for her. There was a brief struggle as Officer Nelson attempted to force Hodges to show her hands. Officer Nelson placed Hodges under arrest for obstruction of a law enforcement officer.

[¶ 6.] Hodges later explained that she had needed to use the restroom. However, there was no evidence she used the restroom at the casino or within the first hour at the jail. In response to Officer Nelson's question whether she was attempting to conceal anything, she responded "I don't use drugs." Officer Nelson conducted a search of Hodges following the arrest and discovered a contact case in her purse containing a controlled substance.

[¶ 7.] The trial court granted Hodges' motion to suppress the controlled substance, reasoning it was the product of an unconstitutional search and seizure. The State filed this intermediate appeal raising two issues:

1. Whether the trial court erred in holding there was no basis for an investigative stop of Hodges. 2. Whether the trial court erred in suppressing the drug evidence under the "fruit of the poisonous tree" doctrine.

STANDARD OF REVIEW

[¶ 8.] We have recently clarified our standard for reviewing a motion to suppress. A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488. See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)

(standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). We review findings of fact under the clearly erroneous standard. State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610. Whether a law enforcement officer had a lawful basis to conduct a warrantless search incident to an arrest is reviewed as a question of law. State v. Sleep, 1999 SD 19, ¶ 6, 590 N.W.2d 235, 237.

[¶ 9.] 1. WHETHER THE TRIAL COURT ERRED IN HOLDING THERE WAS NO BASIS FOR AN INVESTIGATIVE STOP OF HODGES.

[¶ 10.] The trial court determined that Officer Nelson had no legally justifiable reason to detain Hodges. Additionally, the trial court determined as a matter of law:

1. Every person has a right to oppose an illegal arrest, and may engage in flight in order to do so.

2. Mere flight by a person does not authorize that person's arrest as a fugitive, nor may it be considered as a circumstance to establish probable cause for an arrest.

3. The conduct of Officer Nelson exceeded the bounds of a reasonable search and seizure of [Hodges] when he entered the women's restroom of the Dakota Rose Casino.

4. The State failed to meet its burden to prove that the detention, arrest and search of [Hodges] fell within one of the exceptions to the warrant requirement.

[¶ 11.] "The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and is implicated when a vehicle is stopped." State v. Vento, 1999 SD 158, ¶ 18, 604 N.W.2d 468, 470. It is not disputed that Officer Nelson justifiably stopped the vehicle for a traffic violation in which Hodges was a passenger. Hodges urges that while the stop was legitimate, there was no basis to require her to remain at the scene nor to subsequently detain and then arrest her for obstructing a law enforcement officer. In support of her position, Hodges cites to authority indicating that a citizen is free to avoid contact with police if they desire. See Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229, 236 (1983)

. We find that authority inapplicable to these facts.

[¶ 12.] We recognize that in an everyday encounter, a citizen has the right to: choose to not speak with police officers, decline to listen to them and instead go about their business just as they would with any other person. See id. A citizen "may not be detained even momentarily without reasonable, objective grounds for doing so." Id. However, the situation is different when the setting of that encounter changes.

[¶ 13.] A passenger in a vehicle justifiably detained by law enforcement is in a much different situation then a mere passerby on the street. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41, 48 (1997). As recognized by the United States Supreme Court:

[D]anger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

Id.

[¶ 14.] In so holding, the United States Supreme Court approvingly analogized that "although no special danger to the police is suggested" the officer is justified in ordering a passenger out of the vehicle as "the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Id. We find this rationale equally applicable to prevent a passenger from walking away from the vehicle without reason.¹ See also State v. Richards, 1998 SD 128, ¶ 11, 588 N.W.2d 594, 596

(recognizing that a "stop of a vehicle is a seizure of all its occupants.").

[¶ 15.] Hodges maintains that she was within her rights to ignore the officer and to walk away from the vehicle, as there was no basis for any investigative stop.² The United States Supreme Court has recently stated that circumstances surrounding an unprovoked flight may provide an officer with a reasonable suspicion for further investigation. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 577 (2000). The Court further determined that this rationale is consistent with Florida v. Royer which held "that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police." Id. Instructively, the Court further recognized that "[e]ven in Terry v. Ohio, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. Terry recognized that the officers could detain the individuals to resolve the ambiguity." Id. (citing Terry v. Ohio, 392 U.S. 1, 88 SCt 1868, 20 L.Ed.2d 889 (1968)).

[¶ 16.] Our standard for determining whether Officer Nelson had a reasonable suspicion for further investigation is an objective one. "Whether reasonable suspicion exists when the stop was made is a determination based on an objective standard: would the facts observable to the law enforcement officer at the time of the stop entitle an officer...