State v. Satter

• Decision Date: 13 May 2009
• Docket Number: No. 24992.,24992.
• Citation: 2009 SD 35,766 N.W.2d 153
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Shane Allen SATTER, Defendant and Appellant.
• Court: South Dakota Supreme Court

766 N.W.2d 153

2009 SD 35

STATE of South Dakota, Plaintiff and Appellee, v. Shane Allen SATTER, Defendant and Appellant.

No. 24992.

Supreme Court of South Dakota.

Decided May 13, 2009.

Considered on Briefs March 23, 2009.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for plaintiff and appellee.

Darren J. Magee, Minnehaha County Public, Defender's Office, Sioux Falls, for defendant and appellant.

PER CURIAM.

[¶ 1.] A "concerned citizen" eyewitness told a police officer that he had seen two men drinking beer in a van parked next to the eyewitness in a parking lot. The police officer executed a traffic stop on the van after it was driven out of the parking lot. As a result of this stop, Shane Allen Satter was convicted of violating SDCL 32-23-1, driving a vehicle while having 0.08 percent or more BAC. Satter appeals his conviction, claiming that the eyewitness's tip did not create reasonable suspicion to conduct the traffic stop and, therefore, violated the Fourth Amendment of the United States Constitution. He argues that all of the evidence seized from this stop should have been excluded from trial.

FACTS

[¶ 2.] Officer Brian Warwick, of the Sioux Falls Police Department, was parked at the fire station at Madison and Kiwanis Avenues when a white pickup, bearing the logos of a Rapid City business, drove up to his patrol car. Officer Warwick rolled down his window, expecting that the out-of-town driver needed directions.

[¶ 3.] The pickup driver told Officer Warwick that, while he was parked at the gas station across the street, a van had parked next to him in front of the convenience store. The citizen stated that the two occupants of the van were drinking beer from open containers, had the beer between their legs, and one of them had gone into the convenience store to purchase more beer. Officer Warwick asked the citizen to identify which vehicle he was referring to, and the citizen pointed to a van, which was clearly visible from Officer Warwick's position.

[¶ 4.] Within seconds of this identification, the van backed away from the convenience store, then left the parking lot. Officer Warwick was unable to obtain identifying information from the citizen before he left to follow the van. He followed the van for two blocks, saw no unsafe or erratic driving, but still executed a traffic stop on the van. The events that followed the traffic stop are irrelevant to this appeal.

[¶ 5.] Satter was charged with Driving Under the Influence. Before trial, Satter sought to suppress evidence seized after the traffic stop, alleging a violation of the Fourth Amendment. The circuit court admitted the evidence, finding that reasonable suspicion had been established from the citizen's statements.

ISSUE

Whether the information from the tipster alone provided reasonable suspicion to conduct a traffic stop in this situation.

[¶ 6.] Satter argues that the unidentified citizen's statements did not have sufficient "indicia of reliability" to justify the stop because the police officer "did not corroborate any of the tipster's information and conducted the traffic stop based solely on the informant's tip." Further, because no identifying information was collected from the citizen, Satter contends that "there is no way to assess the reputation of the tipster or hold this person accountable should the allegations turn out to be untrue," and thus, the tip should be considered unreliable. Finally, Satter argues that the tip regarded an open container violation, not that the driver of the vehicle was impaired; therefore, public policy concerns about the dangers of drivers under the influence are not applicable when the police officer, in following up on the tip, did not observe impaired driving.

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Although this protection generally requires probable cause to search, the requisite level of suspicion necessary to effectuate the stop of a vehicle is not equivalent to probable cause necessary for an arrest or a search warrant. All that is required is that the police officer has a reasonable suspicion to stop an automobile. Therefore, the factual basis needed to support a traffic stop is minimal.

While the stop may not be the product of mere whim, caprice or idol [sic] curiosity, it is enough that the stop is based upon specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.

State v. Scholl, 2004 SD 85, ¶ 6, 684 N.W.2d 83, 85 (quoting State v. Chavez, 2003 SD 93, ¶¶ 15-16, 668 N.W.2d 89, 95) (emphasis added).

An informant's tip may carry sufficient `indicia of reliability' to justify a [vehicle] stop even though it fails to rise to the level of the probable cause needed for an arrest or search warrant. All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.

Id. (quoting State v. Olhausen, 1998 SD 120, ¶ 7, 587 N.W.2d 715, 717-718). "The ultimate determination of the existence of a reasonable suspicion to stop a vehicle is a question of law reviewed de novo." Id. (citing State v. Faulks, 2001 SD 115, ¶ 8, 633 N.W.2d 613, 617).

Reasonable Suspicion—Indicia of Reliability

[¶ 7.] "Whether an anonymous tip suffices to give rise to reasonable suspicion depends on both the quantity of information it conveys as well as the quality, or degree of reliability, of that information, viewed under the totality of the circumstances." Scholl, 2004 SD 85, ¶ 9, 684 N.W.2d at 86 (quoting United States v. Wheat, 278 F.3d 722, 726 (8thCir.2001)) (emphasis original and added).

Anonymity

[¶ 8.] This case presents a somewhat different factual scenario than previous tipster cases considered by this Court and the United States Supreme Court. These previous decisions have dealt with tipsters who make an anonymous telephone call to the police. The tips are then dispatched to a patrol officer. In this case, the tipster made direct, face-to-face contact with the patrol officer.

[¶ 9.] The United States Supreme Court has not ruled on the distinction between face-to-face and telephonic tips or the effect this difference may have on the reliability of the tip. However, the distinction has been anticipated.

If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring.

Florida v. J.L., 529 U.S. 266, 276, 120 S.Ct. 1375, 1381, 146 L.Ed.2d 254, (2000) (Kennedy, J., concurring).

Many cases have recognized the difference between in-person informants and anonymous calls. See, e.g., Florida v. J.L., 529 U.S. 266, 276, 120 S.Ct. 1375 146 L.Ed.2d 254 (2000) (Kennedy, J., concurring); Davis v. United States, 759 A.2d 665 (D.C.App.2000) (police officer had probable cause for a search after citizen informant who declined to give his name flagged down the officer and told him a man nearby in a wheelchair was selling crack out of his right shoe); United States v. Salazar, 945 F.2d 47, 50-51 (2dCir.1991) ("[A] face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster."); United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9thCir.1978) ("[A]lthough the informant did not identify himself by name, he would have been available for further questioning if the agent had judged the procedure appropriate. Unlike a person who makes an anonymous telephone call, this informant confronted the agent directly."); United States v. Gorin, 564 F.2d 159, 161 (4thCir.1977) ("[S]tandards of reliability should not prevent appropriate action when a victim of a crime immediately has contacted the police. That same analysis applies [when a witness informs the police in person about a crime].") ...

United States v. Sanchez, 519 F.3d 1208, 1214 (10thCir.NM2008) (emphasis added).

[¶ 10.] The tipster in this case was not completely or "truly" anonymous. See Scholl, 2004 SD 85, ¶ 12 n. 4, 684 N.W.2d at 87 n. 4; Sanchez, 519 F.3d at 1214 ("That the police understandably did not take the time to obtain [the tipster's] personal information does not mean she was anonymous."); United States v. Jenkins, 313 F.3d 549, 554 (10thCir.2002) ("A reasonable person ... would realize that in all likelihood the police could, if they so chose, determine the person's identity, and could hold him responsible if his allegations turned out to be fabricated.").

[¶ 11.] The unidentified tipster approached Officer Warwick in person. The white pickup truck he drove bore the identifying logos of a Rapid City business. While the police officer did not obtain the tipster's identifying information and could not recall the name of the Rapid City business, the tipster made no effort to hide or conceal his identity.¹

[¶ 12.] While the face-to-face tip situation has not been considered in this Court's earlier tipster analyses, this is a relevant factor in the "totality of the circumstances" when assessing the reasonable suspicion necessary to conduct a vehicle stop. Because of the increased reliability of face-to-face tips, this factor weighs in favor of the officer's reasonable suspicion.

Quantity of Information

[¶ 13.] In reviewing the quantity of information provided by a tip, both Scholl and Wheat considered a number of identifying facts provided by the tipster "such as the make and model of the vehicle, its license plate numbers ... so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the [tipster]." Scholl, 2004 SD 85, ¶ 9, 684 N.W.2d at 86-87 (quoting Wheat, 278 F.3d at 731) (...