State v. Mohr

• Decision Date: 18 December 2013
• Docket Number: No. 26579.,26579.
• Citation: 2013 S.D. 94,841 N.W.2d 440
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jeffrey Scott MOHR, Defendant and Appellant.
• Court: South Dakota Supreme Court

841 N.W.2d 440

2013 S.D. 94

STATE of South Dakota, Plaintiff and Appellee,

v.Jeffrey Scott MOHR, Defendant and Appellant.

No. 26579.

Supreme Court of South Dakota.

Argued Nov. 5, 2013.

Decided Dec. 18, 2013.

Marty J. Jackley, Attorney General, Bethany L. Erickson, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Molly Quinn of Minnehaha County Public Defender's Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Defendant Jeffrey Scott Mohr was convicted of possession of a controlled substance, possession of drug paraphernalia, and obstructing a law enforcement officer, after being mistakenly identified as a suspected armed robber and detained by police. Mohr appeals, alleging officers did not have reasonable suspicion of criminal activity to stop or frisk Mohr. Mohr asserts that evidence against him was obtained in violation of his Fourth Amendment right against unreasonable search and seizure and that the trial court erred by denying a motion to suppress the evidence.

Facts and Procedural History

[¶ 2.] Mary Griffith was working as a casino attendant at Deuces Casino in Sioux Falls, South Dakota, on the afternoon of August 3, 2011. Defendant Jeffrey Scott Mohr entered the casino, wearing sunglasses and a baseball cap. Mohr got change, snacks, and a drink, and began gambling at the machines. Griffith immediately became frightened, concerned that Mohr was an unidentified fugitive who had robbed other casinos in the area and was in the process of “casing the place” as his next target.

[¶ 3.] A number of recent armed robberies in the area had placed casino owners, employees, and law enforcement on heightened alert. Griffith's friend, who worked at another casino in Sioux Falls that had been robbed, told Griffith that the robber had entered the casino wearing a baseball cap and sunglasses, got a snack, a drink, and change, and then proceeded to play the machines for some time before robbing the casino. Griffith's manager had also placed a “wanted” poster up in Deuces Casino for employees to see. The poster was created by another casino in Sioux Falls and showed three pictures of an armed robbery in progress, taken from a casino video surveillance camera. The suspect pictured in the photos was a Caucasian male wearing sunglasses and a baseball cap, holding up a casino at gunpoint. The manager informed employees not to hesitate to call police if they believed the person pictured on the poster was in the casino.

[¶ 4.] While Mohr was playing a video lottery machine, Griffith surreptitiously conferred with two regular customers of the casino. After showing the customers the poster, the customers agreed that Mohr looked like the man pictured on the poster. Griffith then pushed the casino's “panic button.” In response to the panic button, Metro Communications phoned the casino and spoke with Griffith. The dispatcher informed Griffith that if she did not feel safe talking, Griffith could answer yes and no questions and pretend that someone else was calling. A very frightened Griffith was able to relay that “he” was inside the casino and that she and two customers thought it “certainly looked like him.” Griffith indicated that she wasn't able to tell if Mohr was armed, but she was able to relay to the dispatcher Mohr's location within the casino. Metro Communications dispatched law enforcement to the scene while staying on the telephone with Griffith.

[¶ 5.] When officers arrived, Griffith indicated toward Mohr, who was seated at a video lottery machine. Although it was dark inside the casino, Mohr was still wearing sunglasses and had his baseball cap pulled down over his face. Mohr was asked to step outside. Mohr was accompanied outside by Officers Chris Bauman and Ryan Sandgren, who asked Mohr for an identification card, his birthdate, and his address. Mohr complied.

[¶ 6.] Meanwhile, inside the casino, Griffith explained to Officers Nick Cook and Andrew Siebenborn why she had made the call. Griffith then showed the officers the poster with the photos of the robbery in progress at another casino. Officer Siebenborn examined the poster and agreed that Mohr appeared to be the same person depicted on the poster robbing the casino. Knowing that the previous robberies had involved weapons, Officer Siebenborn went outside to speak with the other officers and Mohr and ensure that Mohr had been patted down for weapons.

[¶ 7.] Once outside, Officer Siebenborn learned that Mohr had not been patted down. At that time, Officer Siebenborn observed that Mohr seemed “jittery and somewhat nervous.” He asked Mohr to place his hands against the building and initiated a frisk of Mohr's outer clothing. Officer Siebenborn felt a wallet in Mohr's pocket, but also a hard object Officer Siebenborn believed to be a weapon—potentially a penknife or pocket knife.

[¶ 8.] As Officer Siebenborn attempted to verify the identity of the item and look into the pocket, Mohr tensed up and spun around. Mohr was handcuffed and placed under arrest for obstruction of a law enforcement officer. A subsequent search of Mohr's pocket revealed that the object in question was a hypodermic needle. The search also uncovered a glass pipe with suspected methamphetamine residue and a small baggie containing a white crystal or powder. Laboratory testing later confirmed the presence of methamphetamine in the baggie and on the pipe.

[¶ 9.] Mohr cooperated with further police investigation and was cleared of any connection to the casino robberies. However, Mohr was charged with Possession of a Controlled Substance (Methamphetamine), in violation of SDCL 22–42–5 and SDCL 34–20B–16(6), Obstructing Law Enforcement Officer, in violation of SDCL 22–11–6, and Possession of Drug Paraphernalia, in violation of SDCL 22–42A–3. Mohr was arraigned on September 14, 2011 and entered a plea of not guilty to all charges. On February 22, 2012, Mohr moved to suppress all evidence found on his person as the product of an illegal search and seizure. A hearing on the motion was held June 28, 2012 in front of the Honorable Peter Lieberman. The court heard testimony from Griffith and the responding officers. The court denied the motion.

[¶ 10.] After the suppression hearing, the case was reassigned to the Honorable Kathleen K. Caldwell. Mohr appeared in front of Judge Caldwell on August 13, 2012 and waived his right to a jury trial. A trial by the court was held October 15, 2012. The court found Mohr guilty on all counts. Mohr was given a suspended sentence of five years in prison, on the conditions that Mohr serve two years of formal probation and submit to weekly drug testing for a period of six months. Mohr appeals his conviction, raising one issue: whether the trial court erred in denying Mohr's motion to suppress evidence based on the alleged violation of Mohr's Fourth Amendment rights. We affirm.

Analysis and Decision

[¶ 11.] 1. Whether the trial court erred in denying Mohr's motion to suppress evidence based on an alleged violation of Mohr's Fourth Amendment rights.

[¶ 12.] Mohr argues that the evidence against him in this case was the product of an illegal search and seizure, in violation of his Fourth Amendment rights. “This Court reviews the denial of a motion to suppress alleging a violation of a constitutionally protected right as a question of law by applying the de novo standard.” State v. Bonacker, 2013 S.D. 3, ¶ 8, 825 N.W.2d 916, 919 (quoting State v. Overbey, 2010 S.D. 78, ¶ 11, 790 N.W.2d 35, 40). The trial court's findings of fact are reviewed under the clearly erroneous standard, but we give no deference to the trial court's conclusions of law. Id. (citation omitted).

[¶ 13.] “The Fourth Amendment's prohibition against unreasonable searches and seizures requires generally the issuance of a warrant by a neutral judicial officer based on probable cause prior to the execution of a search or seizure of a person.” State v. Sound Sleeper, 2010 S.D. 71, ¶ 15, 787 N.W.2d 787, 791 (citations and internal quotation marks omitted). However, if law enforcement officers lack the probable cause necessary to effectuate a custodial arrest, officers may perform a brief, investigative stop based on reasonable suspicion. Id. (citing State v. DeLaRosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 685–86).

[¶ 14.] This Court has noted that it is impossible to articulate a precise definition of reasonable suspicion. State v. Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d 885, 888 (citing State v. Aaberg, 2006 S.D. 58, ¶ 10, 718 N.W.2d 598, 600).See also Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996) (“Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible.”). Thus, this Court applies “a common-sense and non-technical approach to determining reasonable suspicion, one that deals with the practical considerations of everyday life.” Sound Sleeper, 2010 S.D. 71, ¶ 16, 787 N.W.2d at 791 (citing Quartier, 2008 S.D. 62, ¶ 10, 753 N.W.2d 885 at 888). A reviewing court must look to the “totality of the circumstances” to determine whether the officer had a “particularized and objective basis” for suspecting criminal activity. State v. Johnson, 2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926 (citation omitted). The factual basis needed to support an officer's reasonable suspicion is minimal. State v. Satter, 2009 S.D. 35, ¶ 6, 766 N.W.2d 153, 155 (citing State v. Scholl, 2004 S.D. 85, ¶ 6, 684 N.W.2d 83, 85). “All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.” Id. (quoting Scholl, 2004 S.D. 85, ¶ 6, 684 N.W.2d at 85).

[¶ 15.] Mohr first argues that the officers in question lacked the reasonable suspicion necessary to justify even a brief investigatory stop. Mohr points to language in State v. Haar, where we noted:

The critical question is, “would the facts available to the officer at the...