State v. Scholl, 23044.

• Decision Date: 30 June 2004
• Docket Number: No. 23044.,23044.
• Citation: 2004 SD 85,684 N.W.2d 83
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Lonnie Lee SCHOLL, Defendant and Appellant.
• Court: South Dakota Supreme Court

684 N.W.2d 83

2004 SD 85

STATE of South Dakota, Plaintiff and Appellee, v. Lonnie Lee SCHOLL, Defendant and Appellant.

No. 23044.

Supreme Court of South Dakota.

Considered on Briefs on April 26, 2004.

Decided June 30, 2004.

[2004 SD 84]

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

Ronald A. Parsons, Jr. and Matthew T. Tobin of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

MEIERHENRY, Justice.

[¶ 1.] Lonnie Scholl appeals a circuit court order affirming his magistrate court conviction for one count of driving under the influence of alcohol (DUI). We affirm.

FACTS

[¶ 2.] At approximately 10:30 p.m. on September 13, 2002, Sioux Falls Police Officer Brian Reinwald was on duty in his patrol car when he received a radio dispatch directing units in the area to respond to a report of a possible drunk driver on Westport Avenue. Dispatch advised that an informant called in to report seeing the driver "leaving Scarlet O'Hara's bar stumbling pretty badly and having problems getting into [his] Toyota Tacoma pickup."¹ The informant gave the license plate number of the vehicle which bore commercial plates from the State of Nebraska. The informant also described the vehicle as a blue Toyota pickup with a topper on it. The informant followed the vehicle from the bar onto Interstate 29 and then east on Twelfth Street and continued to update dispatch on the location of the vehicle until it turned onto Westport Avenue.

[¶ 3.] Within three or four minutes of receiving the initial dispatch, Officer Reinwald encountered the suspect vehicle in the location where the informant said it would be and began to pursue it.² Reinwald followed the vehicle for approximately eleven blocks, confirming that the license plate number, color and vehicle type all matched the informant's description. Although Reinwald did not observe any violations of the law, erratic driving or anything else leading him to believe that the driver was impaired, he stopped the vehicle solely on the basis of the informant information. After the stop Reinwald identified Scholl as the driver and, based upon his observations of Scholl, had him perform a series of field sobriety tests. The results of the tests led to Scholl's arrest for DUI. A blood test administered shortly after the arrest yielded a result of 0.227% by weight of alcohol in the blood.

[¶ 4.] After his indictment for DUI and prior to a court trial in magistrate court, Scholl moved to suppress all evidence obtained as a result of the stop of his vehicle on the basis that the stop violated the Fourth and Fourteenth Amendments to the U.S. Constitution and Article VI, Section 11 of the South Dakota Constitution. The motion was denied. Scholl was later convicted of DUI and sentenced to 120 days in the county jail with 100 days suspended and a fine of $650 plus costs and loss of driving privileges for one year. Scholl appealed his conviction to circuit court, again challenging the validity of the vehicle stop. The circuit court affirmed in an order entered October 21, 2003. Scholl now appeals to this Court.

ISSUE

[¶ 5.] Did Officer Reinwald have a reasonable suspicion of a violation of law sufficient to support the stop of Scholl's vehicle?

[¶ 6.] The requirement of a reasonable suspicion of a violation of law to support a traffic stop has been set forth as follows:

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Although this protection generally requires probable cause to search, "[t]he 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 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." Under these standards, it is well established that a traffic violation, however minor, creates sufficient cause to stop the driver of a vehicle.

State v. Chavez, 2003 SD 93, ¶¶ 15-16, 668 N.W.2d 89, 95 (citations omitted). The reasonable suspicion necessary to support a traffic stop may be provided by an informant's tip.

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."

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

[¶ 7.] This Court has considered a number of cases involving vehicle stops based upon informant tips. See e.g. State v. Anderson, 359 N.W.2d 887 (S.D.1984); State v. Kissner, 390 N.W.2d 58 (S.D.1986); State v. Czmowski, 393 N.W.2d 72 (S.D.1986); State v. Lownes, 499 N.W.2d 896 (S.D.1993); Graf v. State, 508 N.W.2d 1 (S.D.1993); Olhausen, 1998 SD 120,587 N.W.2d 715; State v. Herrmann, 2002 SD 119, 652 N.W.2d 725. Only a few of these cases, however, have involved a vehicle stop based solely upon an informant's tip. See e.g. Kissner, supra; Czmowski, supra; Lownes, supra; Graf, supra.³ These cases all predate the United States Supreme Court's decision in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). While J.L. did not involve a vehicle stop, it did consider the validity of the search of a suspect at a bus stop based solely on an informant's tip that he was carrying a gun. In reaching its decision, the Supreme Court emphasized the "indicia of reliability" necessary for an anonymous tip to furnish reasonable suspicion for an investigatory stop. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)(information provided by anonymous tip may be sufficiently reliable to justify an investigative stop). Accord Lownes, supra. The Court found such indicia lacking in J.L. stating, "All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." J.L., 529 U.S. at 271,120 S.Ct. 1375.

[¶ 8.] In United States v. Wheat, 278 F.3d 722 (8thCir.2001), the Eighth Circuit Court of Appeals applied the reliability requirements of J.L. in the context of a vehicle stop. In Wheat, an informant traveling in Iowa used a cell phone to report another driver's erratic driving to a local police department. The informant described the other vehicle's color, make and model and gave the first three letters of its license plate number. He also provided the other vehicle's location and the direction in which it was moving. The informant complained that the other vehicle was "passing on the wrong side of the road, cutting off other cars, and otherwise being driven as if by a `complete maniac.'" Wheat, 278 F.3d at 724. The informant information was relayed to patrolling officers and, shortly thereafter, an officer found the subject vehicle stopped at an intersection in the location mentioned by the informant. As the driver turned, the officer stopped the vehicle immediately "without having observed any incidents of erratic driving." Id. at 724-25. The stop led to the arrest and conviction of a passenger in the vehicle for possession of cocaine.

[¶ 9.] In determining whether the informant's tip provided adequate cause for the vehicle stop in Wheat, the Eighth Circuit defined the test as follows:

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. [White, supra]. "[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id.

Wheat, 278 F.3d at 726 (emphasis added). The court looked to a number of factors to assess the quantity and quality of the informant information and found the following considerations integral to determining "whether an anonymous tip of erratic driving may justify an investigatory stop." Id. at 731.

First, the anonymous tipster must provide a sufficient quantity of information, such as the make and model of the vehicle, its license plate numbers, its location and bearing, and similar innocent details, so that the officer, and the court, may be certain that the vehicle stopped is the same as the one identified by the caller. The time interval between receipt of the tip and location of the suspect vehicle, though going principally to the question of reliability, may also be a factor here.

* * *

The tip must also contain a sufficient quantity of information to support an inference that the tipster has witnessed an actual traffic violation that compels an immediate stop. A law enforcement officer's mere hunch does not amount to reasonable suspicion.

Wheat, 278 F.3d at 731-732.

[¶ 10.] With regard to assessing the quality or degree of reliability of an anonymous tip, the court observed that the "primary determinant of a tipster's reliability is the basis of his knowledge" and further observed that "in erratic driving cases the basis of the tipster's knowledge ... [a]lmost always ... comes from his eyewitness observations[.]" Wheat, ...