State v. Sharpfish, 28705

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice
• Citation: 933 N.W.2d 1
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Irwin SHARPFISH, Defendant and Appellee.
• Decision Date: 14 August 2019
• Docket Number: 28705

933 N.W.2d 1

STATE of South Dakota, Plaintiff and Appellant,
v.
Irwin SHARPFISH, Defendant and Appellee.

28705

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON MARCH 25, 2019
OPINION FILED August 14, 2019

MARTY J. JACKLEY, Attorney General, PAUL S. SWEDLUND, QUINCY R. KJERSTAD, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellant.

ELIZABETH REGALADO of Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice

¶1.] Irwin Sharpfish was charged in magistrate court with driving under the influence of alcohol. He filed a motion to suppress evidence obtained from his encounter with law enforcement, which was denied by the magistrate court. He was convicted following a bench trial and appealed his conviction to the circuit court. The circuit court reversed Sharpfish’s conviction, ordered that his motion to suppress should be granted, and remanded the case. The State filed a petition for an intermediate appeal from the circuit court’s order. We granted the appeal, but dismissed it as untimely. Following our decision, the magistrate court ordered that Sharpfish’s motion to suppress should be granted in accordance with the circuit court’s order. The State filed a petition for an intermediate appeal from the magistrate court’s order, which we granted. We reverse.

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Facts and Procedural History

¶2.] On August 8, 2015, while on patrol in Rapid City, Officer Garrett Loen received a dispatch at approximately 1:45 a.m. regarding a report of an intoxicated driver. Officer Loen was advised that a Native American male, about six feet tall, 180 pounds, and wearing jeans and a t-shirt was driving a blue minivan northbound in the Baken Park parking lot towards the Corner Pantry gas station. Officer Loen was not told the reporting party’s identity or provided information regarding why the reporting party believed the driver to be intoxicated. Officer Loen was in the vicinity and proceeded directly to the Corner Pantry.

[¶3.] An L3 dashcam recording system on Officer Loen’s patrol car captured the event. The recording began as Officer Loen approached, but because of the system’s location on the patrol car, it did not capture Officer Loen’s observations of the minivan before it stopped at the pump. Officer Loen witnessed the blue minivan driving through the parking lot and coming to a stop at a gas station pump. He did not witness any erratic driving or traffic violations.

[¶4.] The recording shows that Officer Loen pulled up behind the van roughly a car length away. The gas station pumps were brightly illuminated by artificial light. Officer Loen activated his amber warning lights, which he later testified he used to alert others to his presence during non-custodial stops. The van’s driver, Sharpfish, had turned off his engine. He had exited the minivan and appeared to be rummaging around for something inside the vehicle as Officer Loen stepped out of his patrol vehicle.

[¶5.] Officer Loen greeted Sharpfish in a conversational manner, and Sharpfish replied, "I'm doing good," and stated that he was just getting gas. He also mentioned something unintelligible about his son having taken something. Officer Loen paused briefly just in front of his patrol vehicle and a few feet behind Sharpfish’s minivan to observe Sharpfish. He then approached Sharpfish, who swayed where he stood, slurred his speech, smelled of alcohol, and had bloodshot eyes. As Officer Loen came closer to Sharpfish to stand between him and the pump, Officer Loen informed Sharpfish that someone had called "him" in as an intoxicated driver and asked for his driver’s license. Sharpfish complied.

[¶6.] Officer Loen then asked Sharpfish if he had anything to drink that night. Sharpfish denied having anything to drink and initially refused Officer Loen’s request to undergo field sobriety tests. Sharpfish eventually agreed to perform a horizontal gaze nystagmus test, but refused Officer Loen’s request to do more tests. As another officer arrived at the scene to assist, Officer Loen placed Sharpfish under arrest for driving under the influence. Officer Loen obtained a warrant for a blood draw, which revealed that Sharpfish’s blood alcohol content was 0.222%. Sharpfish was charged in magistrate court with driving under the influence of alcohol, and, in the alternative, driving with a blood alcohol content of 0.08% or more. The State filed a part II information alleging that Sharpfish had a prior conviction in Nevada for driving under the influence of alcohol.

[¶7.] On April 5, 2016, Sharpfish moved to suppress the evidence obtained as the result of his encounter with Officer Loen. He contended that "he was not contacted and detained based on reasonable suspicion" and therefore the "stop" violated the Fourth Amendment of the United States Constitution and Article VI of the South Dakota Constitution. An evidentiary hearing was held in magistrate court. Officer Loen testified and the State introduced a DVD of the encounter captured by the L3

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dashcam. On July 25, 2016, the magistrate court denied the motion to suppress. It concluded that Sharpfish had not been seized until Officer Loen developed a reasonable suspicion of Sharpfish’s intoxication and confirmed the details of the dispatch.

¶8.] The magistrate court held a bench trial on September 27, 2016. Officer Loen testified and the dashcam footage was introduced as evidence. The court found Sharpfish guilty of driving under the influence. Sharpfish admitted to the part II information on December 20, 2016, was sentenced to 180 days in jail, and had his license revoked. The magistrate court entered a judgment of conviction and Sharpfish appealed to the circuit court.

[¶9.] The circuit court examined Sharpfish’s encounter with Officer Loen and determined that there had not been a consensual encounter that evolved into an investigatory stop, as the magistrate court had concluded. Rather, the circuit court found that Sharpfish had been seized from the outset because, under the totality of the circumstances, a reasonable person would not have felt at liberty to terminate the encounter. The circuit court concluded this because Officer Loen was parked behind Sharpfish’s van; Officer Loen had activated his amber lights, which to a reasonable person would "signify an official police detention[;]" Sharpfish had been told "he" was the subject of an investigation; Officer Loen "positioned himself in such a way as to limit [Sharpfish’s] movement[;]" and Officer Loen was in full uniform and carried a service weapon. Furthermore, the court concluded that the conclusory tip had not provided Officer Loen with reasonable suspicion to justify the stop. On June 19, 2017, the court ordered that Sharpfish’s motion to suppress evidence should be granted, reversed his conviction, and remanded the case for further proceedings.

[¶10.] On July 5, 2017, the State petitioned for an intermediate appeal under SDCL 23A-32-5 and SDCL 23A-32-12, which we granted. State v. Sharpfish , 2018 S.D. 63, ¶¶ 11-12, 917 N.W.2d 21, 23 ( Sharpfish I ). We dismissed the State’s appeal, because there was "no basis for an appeal to this Court in SDCL chapter 23A-32 at the present stage of the proceedings[.]" Id. ¶ 14. Under SDCL 23A-32-6, "[a]n appeal under § 23A-32-4 or 23A-32-5 must be taken within ten days after written notice of entry of the judgment or order." Similarly, " SDCL 23A-32-12 also references the procedures under SDCL 15-26A-13 that require a petition for discretionary review of an order to be filed within ten days after notice of entry of the order." Sharpfish I , 2018 S.D. 63, ¶ 13, 917 N.W.2d at 23. We stated that regardless of which statute that could have granted the State a possible right of intermediate appeal, its July 5 petition was untimely because the State acknowledged that an email from the circuit court on June 19, 2017, regarding its decision " ‘constitut[ed] notice of entry’ of order." Id. ¶ 12.

[¶11.] On August 20, 2018, the magistrate court entered its order "act[ing] in accordance with the circuit court’s June 19, 2017 decision and order." The magistrate, therefore, granted Sharpfish’s motion to suppress. On August 30, the State again petitioned for an intermediate appeal. Following an order to show cause, we granted the State’s petition. The issues are:

1. Whether this Court has jurisdiction to hear the State’s appeal.

2. Whether Officer Loen seized Sharpfish within the meaning of the Fourth Amendment.

Analysis and Decision

1. Whether this Court has jurisdiction to hear the State’s appeal.

[¶12.] "This Court has only such appellate jurisdiction as may be provided

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by the [L]egislature. The right to appeal is statutory and therefore does not exist in the absence of a statute permitting it." Wegner v. Siemers , 2018 S.D. 76, ¶ 4, 920 N.W.2d 54, 55 (quoting State v. Schwaller , 2006 S.D. 30, ¶ 5, 712 N.W.2d 869, 871 ). We "take notice of jurisdictional questions, whether presented by the parties or not." Schwaller , 2006 S.D. 30, ¶ 5, 712 N.W.2d at 871 (quoting Dale v. City of Sioux Falls, 2003 S.D. 124, ¶ 6, 670 N.W.2d 892, 894 ).

¶13.] The State contends that we have jurisdiction to hear its appeal under SDCL 23A-32-5, which provides:

An appeal by a prosecuting attorney may be taken to the Supreme Court from:

(1) An order of a circuit court or a magistrate

...