State v. Sleep, 20472

• Decision Date: 03 December 1998
• Docket Number: No. 20472,20472
• Citation: 1999 SD 19,590 N.W.2d 235
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James SLEEP, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 235

590 N.W.2d 235

1999 SD 19

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

No. 20472.

Supreme Court of South Dakota.

Considered on Briefs Dec. 3, 1998.

Reassigned Dec. 31, 1998.

Decided Feb. 10, 1999.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.

Bruce Ellison, Rapid City, South Dakota, for defendant and appellant.

KONENKAMP, Justice (on reassignment).

¶1 In this appeal, we must decide if once a suspect surrenders a weapon to investigating officers, may the officers continue a patdown search when they still observe suspicious bulges which might be concealed weapons. The trial court upheld the search which ultimately revealed illegal drugs. We affirm because if officers reasonably suspect more weapons may be concealed, they may continue their patdown search.

Facts

¶2 On August 7, 1997 at approximately 3:30 am, Troopers Deuter and Lentz were patrolling on Highway 34 east of Sturgis, South Dakota, when they received a radio message from Trooper Noteboom warning of a white Toyota pickup speeding and driving erratically toward Sturgis. Noteboom was engaged in another traffic stop and was unable to pursue the truck. He did not report a license number, a description of the driver or relate whether any passengers were aboard.

¶3 Before long, Troopers Deuter and Lentz spotted a white Toyota pickup coming toward them. As they turned and followed it, the truck traveled in the inner lane of the four-lane highway. Although it never crossed into the oncoming lanes, at one point the truck straddled the line between the inner and outer lanes for the equivalent of one block. While the officers followed, the pickup swerved to the fog line, then to the center of the lane and back to the fog line. After observing this, the officers stopped the truck on suspicion of driving under the influence. When he approached the vehicle, Trooper Deuter asked the driver, James Dale Sleep, to produce his license, registration, and proof of insurance. Deuter could detect no odor of alcohol or marijuana. He asked Sleep to accompany him to his patrol car and Sleep followed without swaying or staggering. The officer delineated a fine line between being belligerent and mouthy, but assessed Sleep's deportment as definitely mouthy.

¶4 As they walked toward the patrol car, Deuter saw a bulge in Sleep's right front pants pocket. When asked if he had any weapons, Sleep replied that he had a knife. Deuter requested it and Sleep handed it to him. Deuter then asked if he had any other weapons, but Sleep denied it. Deuter saw two bulges in Sleep's left front pants pocket and asked him what they were. Sleep did not respond. The officer patted the pocket and determined that the bulges "could possibly be pocket knives." Again, Deuter asked what was in his pocket. Sleep "reached in and he fished around in his pocket for a little bit and he came out and he held out his hand with nothing in it." The bulges were still there. Deuter had Sleep empty that pocket. Sleep removed two cigarette lighters, a "wad" of cash, a small drug sniffing device known as a "bullet," and a sticker that read, "My other bike is up my nose." Trooper Lentz handcuffed Sleep and the officers then searched his clothing. Lentz found a baggie containing methamphetamine and a snort tube in Sleep's left pocket. ¹

¶5 Sleep moved to suppress the evidence taken during the search, asserting that (1) the traffic stop was merely pretextual; (2) he was unlawfully detained absent any reasonable circumstances to show the commission of an offense; (3) the officers performed a patdown search without an indication of a present danger to the safety of the officers; (4) the search was performed without consent or a warrant; and (5) the seizure of the methamphetamine violated his state and federal constitutional rights. His motion was denied and he was convicted in a court trial. He received a suspended imposition of sentence. He now appeals claiming the trial court erred in denying his motion to suppress.

Standard of Review

¶6 We review a court's fact findings 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, p 13, 580 N.W.2d 606, 610. Whether a law enforcement officer had a lawful basis to conduct a warrantless search is reviewed as a question of law. State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citation omitted).

Analysis and Decision

1. Investigatory Stop

¶7 Sleep first asserts that the officers lacked valid grounds to stop his vehicle--"the purported 'weaving' in the instant case did not provide probable cause of drunk driving nor justify the DUI investigatory stop made in this case." The Fourth Amendment of the United States Constitution and Article VI, § 11 of the South Dakota Constitution protect an individual's right to be free from unreasonable searches and seizures. The stop of an automobile is a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). To justify detaining a person, a law enforcement officer must have reasonable suspicion supported by articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); see State v. Anderson, 331 N.W.2d 568, 570 (S.D.1983) (citation omitted). Reasonable suspicion to stop a vehicle is not equivalent to probable cause needed for an arrest or a search warrant. State v. Lownes, 499 N.W.2d 896, 898 (S.D.1993). The factual basis needed to support a traffic stop is minimal. Police are not authorized to pull over motorists on a hunch or idle curiosity, but a stop is lawful under Terry if officers have " 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]' " Anderson, 331 N.W.2d at 570 (alterations in original) (quoting People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975) (citation omitted)). ²

¶8 Following these standards, we conclude that the officers had an articulable suspicion to justify stopping Sleep's vehicle to further investigate a possible DUI offense. Just before spotting his Toyota pickup, the officers received a radio message from Trooper Noteboom about a truck similar to Sleep's Toyota. Noteboom communicated his observations about how the vehicle was driving. Although Noteboom was unable to report a license plate number or a description of the driver, his message alerted other law enforcement officers to be on the watch for a white Toyota pickup driving erratically. Terry stops are permissible even when the information supplying the reasonable suspicion comes from another person rather than an officer's personal observation. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). Yet Trooper Lentz and Deuter independently observed Sleep's truck weaving and straddling the line between two lanes. They could not conclude with certainty that the Toyota they spotted was the one Noteboom described. Nonetheless, a definite traffic violation was not necessary before stopping the truck. Based on Noteboom's radio alert and their own observations, they had a reasonable and articulable suspicion, and that is all the law requires.

2. Patdown Search

¶9 Sleep next argues that the patdown search for weapons was unreasonable. Fundamentally, whether a search is reasonable depends on balancing the public's interest in preventing crime with the individual's right to be free from arbitrary and unwarranted governmental intrusions into personal privacy. State v. Ashbrook, 1998 SD 115, p 8, 586 N.W.2d 503, 506-07; see also Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); Terry, 392 U.S. at 20-27, 88 S.Ct. at 1879-83. The United States Supreme Court decided in Terry that protective patdown searches occurring as part of investigatory stops are justified when officers have grounds to believe that their safety or the safety of others may be compromised by concealed weapons. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. With potentially armed suspects, officers have no less reason for self-protection during an investigatory stop than they might have during an arrest. Adams, 407 U.S. at 146, 92 S.Ct. at 1923. At the inception of the search,

[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.... And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Terry, 392 U.S. at 27, 88 S.Ct. at 1883 (internal citations omitted). The Court concluded that a limited protective search of this type is not contrived to

discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable.... So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.

Adams, 407 U.S. at 146, 92 S.Ct. at 1923 (internal footnote omitted) (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884).

¶10 As we stated above, the stop here was valid and Sleep was lawfully directed to the patrol car. When asked, Sleep admitted he was carrying a weapon and surrendered a knife. Because he handed over a single weapon, were the officers bound to conclude that this...