State v. Iversen

• Decision Date: 24 June 2009
• Docket Number: No. 24960.,24960.
• Citation: 2009 SD 48,768 N.W.2d 534
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James Michael IVERSEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

768 N.W.2d 534

2009 SD 48

STATE of South Dakota, Plaintiff and Appellee, v. James Michael IVERSEN, Defendant and Appellant.

No. 24960.

Supreme Court of South Dakota.

Considered on Briefs March 23, 2009.

Decided June 24, 2009.

Lawrence E. Long, Attorney General, Sherri Sundem Wald, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Manuel J. de Castro, Jr., Madison, South Dakota, Attorney for defendant and appellant.

PER CURIAM.

[¶ 1.] James Iversen appeals his conviction for driving or control of a vehicle with a prohibited blood alcohol level. We affirm.

FACTS

[¶ 2.] At approximately 1:30 on the morning of January 5, 2008, a police officer patrolling in the City of Madison passed by the parking lot of an agricultural supply store. Behind an old gas station in the parking lot, the officer observed a Ford pickup parked beside a semi trailer. The lights of the pickup were off and the engine was running. Because of the early-morning hour and a history of battery thefts in the area, the officer became concerned and pulled into the parking lot. The officer then focused his patrol car's spotlight on the pickup and exited his vehicle to make contact with the pickup's driver and passenger.

[¶ 3.] As the officer approached the pickup, the driver rolled his window down. The officer immediately smelled the odor of an alcoholic beverage coming from the pickup and observed that the driver had bloodshot, glassy eyes and that his face was flushed. When the officer asked the driver what he and his passenger were doing the driver replied that they were just talking. After some other small talk, the officer asked the driver for his driver's license which the driver gave to the officer. The officer identified the driver as Iversen and, because of the odor of alcoholic beverages and other indications of consumption, asked Iversen to come back to his patrol car. The officer eventually had Iversen perform a series of field sobriety tests and, based upon the results and his earlier observations, placed Iversen under arrest for driving under the influence of alcohol.

[¶ 4.] After the arrest, the officer read Iversen the Miranda warnings and Iversen agreed to answer questions. Iversen admitted to consuming a number of beers at a local bar and that after leaving that establishment he and his companion had driven to the parking lot where the officer found them conversing. After these admissions, the officer transported Iversen to a local hospital for a blood draw. Testing later established Iversen's blood alcohol level was .153% by weight of alcohol in the blood.

[¶ 5.] The State charged Iversen with alternative counts of driving or control of a vehicle with a prohibited blood alcohol level and driving or control of a vehicle while under the influence of an alcoholic beverage. Before trial, Iversen moved to suppress the evidence obtained during his encounter with the police officer arguing it was the product of an unconstitutional stop, seizure and arrest. After an evidentiary hearing, the trial court entered findings of fact, conclusions of law and an order denying the motion to suppress. Iversen petitioned for an intermediate appeal of the order, which this Court denied.

[¶ 6.] Iversen waived a jury trial and his case was tried to the court on July 3, 2008. During trial, Iversen renewed his evidentiary objections, which were again overruled. At the close of trial, the court found Iversen guilty of driving or control of a vehicle with a prohibited blood alcohol level. Iversen was sentenced on July 21, 2008, to thirty days in jail plus fines and costs totaling $500. The jail time was suspended on various terms and conditions and was stayed for purposes of appeal. Iversen now appeals to this Court.

ISSUE

[¶ 7.] Whether the trial court erred in denying Iversen's motion to suppress.

Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo. See State v. Hirning, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603; Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9thCir.1993). We review findings of fact under the clearly erroneous standard. See 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.

State v. Sheehy, 2001 SD 130, ¶ 6, 636 N.W.2d 451, 452.

[¶ 8.] Iversen argues that the trial court erred in denying his motion to suppress because the evidence against him was obtained as a result of an unconstitutional vehicle stop. In support of his argument, Iversen relies on a line of cases addressing the legality of vehicle stops. See, e.g., State v. Noteboom, 2008 SD 114, ¶ 3, 758 N.W.2d 457, 458 (police chief approached defendant's vehicle from behind and initiated a traffic stop); State v. Bergee, 2008 SD 67, ¶ 5, 753 N.W.2d 911, 912 (police officer stopped defendant's vehicle before it could leave a parking lot). However, as pointed out by the trial court in its analysis of this case, "the significant issue [here] is that there was no stop, the vehicle was already stopped."

[¶ 9.] The trial court's analysis correctly recognized that not every encounter between a citizen and the police constitutes a Fourth Amendment seizure. See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) (stating that "not all personal intercourse between policemen and citizens involves `seizures' of persons"); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality) (Stewart, J.) (stating that "characterizing every street encounter between a citizen and the police as a `seizure' [would not enhance] any interest secured by the Fourth Amendment").

[¶ 10.] "Only when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may [a court conclude] that a `seizure' has occurred." See Terry, 392 U.S. at 19, n. 16, 88 S.Ct. at 1879, 20 L.Ed.2d 889. This standard is met when law enforcement stops a vehicle, necessitating a reasonable suspicion of criminal activity to support the stop. See Noteboom, 2008 SD 114, ¶ 6, 758 N.W.2d at 459 (quoting United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)) (stating that Fourth Amendment protections extend to brief investigatory stops of vehicles and that the amendment is satisfied if the officer's action is supported by a reasonable suspicion to believe criminal activity is afoot); Bergee, 2008 SD 67, ¶ 10, 753 N.W.2d at 914 (stating that brief investigatory traffic stops are permitted when based on an objectively reasonable and articulable suspicion that criminal activity is occurring). Here, however, as recognized by the trial court, there was no vehicle stop; the vehicle was already stopped. The only prior South Dakota case cited by the parties that addresses the legality of a law enforcement encounter with the driver of a vehicle already stopped is State v. Sheehy, 2001 SD 130, 636 N.W.2d 451.

[¶ 11.] In Sheehy, a conservation officer received an anonymous tip about a game violation. The tipster provided Sheehy's location and the license number of his vehicle. The officer drove to the location given and found a vehicle registered to Sheehy parked in a parking lot. Soon, the officer observed a man place some items into the vehicle. The officer approached the man and learned that he was, in fact, Sheehy. The officer asked to see Sheehy's game and Sheehy led the officer into a nearby restaurant where the game was being kept in some coolers. The ensuing investigation led to Sheehy's conviction for a game violation.

[¶ 12.] On appeal, Sheehy argued that the questioning by the officer in the parking lot was an impermissible stop because the anonymous tip was not reliable. This Court held that the initial questioning of Sheehy by the officer was not a seizure under the Fourth Amendment because Sheehy was never told that he was not free to leave nor did the officer frisk or "pat-down" Sheehy at any time prior to arrest. Sheehy, 2001 SD 130, ¶ 8, 636 N.W.2d at 453. The Court went on to observe that it is "imperative" for police to conduct routine investigations and question people in public areas and that investigative questions do not translate into a constitutional infringement without a threat of police detention. Id. ¶ 9. In support of its observations, the Court quoted the following analysis from Florida v. Bostick, 501 U.S. 429, 433, 111 S.Ct. 2382, 2385, 115 L.Ed.2d 389, 398 (1991):

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required." The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968): "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred."

[¶ 13.] Reasoning similar to that employed in Sheehy has been applied in cases even more analogous to Iversen's. In United States v. Barry, 394 F.3d 1070 (8thCir.2005), a police officer on patrol at approximately 11:00 p.m. noticed a parked vehicle's headlights in an alley behind a shopping mall. Because of the late hour and...