State v. Thill
| Decision Date | 17 July 1991 |
| Docket Number | No. 17382,17382 |
| Citation | 474 N.W.2d 86 |
| Parties | STATE of South Dakota, Plaintiff and Appellee. v. Gregory Jay THILL, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mark Barnett, Atty. Gen., Wade A. Hubbard, Deputy Atty. Gen., Pierre, for plaintiff and appellee.
Thomas W. Parliman, Sioux Falls, for defendant and appellant.
On October 21, 1989, at approximately 1:00 a.m., the Sioux Falls Police Department set up a sobriety roadblock for southbound traffic on Minnesota Avenue in Sioux Falls, South Dakota. At the point of the roadblock, a patrol car was stationed with its red lights flashing. Another patrol car with its amber lights flashing was parked approximately 350 feet north of the roadblock. Traffic cones were set in the street to direct the southbound traffic through the roadblock.
Officer Persing (Persing) was on duty and assigned to check cars at the roadblock when he observed Gregory Thill's (Thill) car make a left hand turn into a driveway at approximately the location of the patrol car with the flashing amber lights. Persing watched as Thill stopped in the driveway, backed out into the street and proceeded northbound, in the direction from whence he came. Persing immediately got into his patrol car and followed Thill. Thill turned left approximately two blocks north of the roadblock and turned left again approximately two blocks later. Persing then stopped Thill, after his car was again heading in the direction of the roadblock.
Pursuant to the stop, Persing observed Thill's physical appearance and administered field sobriety tests. Based upon his observations, Persing placed Thill under arrest. After questioning Thill, Persing transported him to the Public Safety Building, where Thill agreed to take an intoxilizer test. He was then charged with DWI.
Before trial, Thill moved to suppress his arrest and the evidence obtained pursuant to it, arguing that Officer Persing had no reasonable basis to stop him. Persing's sole reason for stopping Thill's vehicle was the fact he had turned prior to going through the roadblock. Persing observed no moving violations or erratic driving by Thill. The trial court denied the motion to suppress and the case proceeded to trial.
The magistrate judge found Thill guilty of DWI. Thill appealed his conviction to circuit court, which affirmed the judgment of the magistrate. Thill appeals to this court and raises a single issue: whether Officer Persing had sufficient cause to stop Thill's automobile.
Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979). At a minimum, then, law enforcement must have an articulable and reasonable suspicion that the motorist is subject to seizure for violation of the law before the stop occurs. Id. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673. See also United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
In State v. Anderson, 331 N.W.2d 568 (S.D.1983), we extended the reasonable suspicion standard to automobile stops in this state.
It is well settled that in accordance with the Fourth Amendment of the United States Constitution a police officer may not stop a vehicle without a reasonable basis for doing so. Consistent with the principles set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer must have a specific and articulable suspicion of a violation before the stop will be justified.
Id. at 570 (citing Marben v. State, Dept. of Public Safety, 294 N.W.2d 697, 699 (Minn.1980) (emphasis added)). We more precisely defined the reasonable suspicion standard:
It should be emphasized that the factual basis required to support a stop for a "routine traffic check" is minimal.... All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion[.]"
Anderson, 331 N.W.2d at 570 (citing People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975)). Accord State v. Anderson, 359 N.W.2d 887 (S.D.1984).
Whether the avoidance of a roadblock constitutes reasonable suspicion to stop a motorist is an issue which has been addressed in several jurisdictions, with mixed results. At least five jurisdictions hold that a driver's effort to avoid a roadblock is alone sufficient to raise an articulable and reasonable suspicion of criminal wrongdoing, supporting an investigatory stop. See Synder v. State, 538 N.E.2d 961 (Ind.App. 4th Dist.1989); Stroud v. Commonwealth, 6 Va.App. 633, 370 S.E.2d 721 (1988); Boches v. State, 506 So.2d 254 (Miss.1987); Smith v. State, 515 So.2d 149 (Ala.Crim.App.1987); Coffman v. State, 26 Ark.App. 45, 759 S.W.2d 573 (1988). However, at least two jurisdictions have explicitly rejected this position. State v. Talbot, 792 P.2d 489 (Utah App.1990); Pooler v. Motor Vehicles Div., 88 Or.App. 475, 746 P.2d 716 (1987), aff'd 306 Or. 47, 755 P.2d 701 (1988).
In Talbot, 792 P.2d at 493-94, the Utah Court of Appeals examined this issue in the context of avoiding confrontation with the police. The court acknowledged the majority rule that the mere act of avoiding confrontation with the police does not create an articulable suspicion supporting a stop. * The court reasoned that if a person may avoid or ignore an officer when approached on the street, a person should also be able to avoid a confrontation at a roadblock. Id. at 494.
Notwithstanding the general freedom to avoid police confrontation, we find the avoidance of the police roadblock in this instance was sufficient to create an articulable and reasonable suspicion of criminal activity. Automobiles and their use on state roads are the subject of significant state regulation (e.g. licensing, registration). This fact distinguishes the cases relied upon in Talbot, the majority of which involved pedestrians. And while people are not shorn of their Fourth Amendment protection when they step from the sidewalks into their automobiles, Prouse, 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673, their actions on the road become subject to increased state regulation and restriction. Consequently, actions taken on the road, the character of which would be innocent in another context, may well give rise to an articulable and reasonable suspicion of a violation of the law respecting the use or ownership of an automobile.
Thill's turnabout at the entrance of the roadblock and his subsequent circuitous route constituted a reasonable suspicion that Thill was in violation of the law respecting the use or ownership of an automobile. The subsequent stop of Thill's vehicle was therefore lawful. Such a conclusion is consonant with the majority of jurisdictions which have addressed this issue. We affirm.
I join the dissent of Justice Sabers.
In doing so, it is noted that the dissent is supported by the majority viewpoint in the United States. State v. Talbot, 792 P.2d 489 (Utah 1990). Via the majority opinion, South Dakota adopts the minority viewpoint.
In this factual scenario, Thill made a lawful left hand turn. Arresting officer Persing testified that he was 150 yards from Thill's vehicle when it made a left hand turn. There is no doubt--no question at all--that Persing's only reason for later pursuing, stopping, and seizing the Thill vehicle was the fact that Thill turned before going through the roadblock. It is undisputed that Thill demonstrated no criminal behavior, no erratic driving behavior, no moving violations as he proceeded to the roadblock or away from it.
Therefore, there was absolutely no specific and articulable suspicion of a violation before the stop. State v. Anderson, 331 N.W.2d 568 (S.D.1983). By this decision, South Dakota adopts the rule that the act of avoiding a roadblock--by itself--creates an articulable suspicion of some type of criminal activity. 1 In this train of reasoning, the majority opinion is in error on both of its propositions, the one of fact, the other of constitutional law, and its conclusion withers.
Under questioning at oral argument by this writer, it was admitted by the Assistant Attorney General that (a) there is no statute in this state forbidding the avoidance of a roadblock and (b) Thill never got into the lane of cones which channeled the traffic to Officer Persing's roadblock.
We have, before us, another erosion of the requirement of only minimal intrusion. Minimal intrusion is employed as a legal theory to justify the very existence of a roadblock. I hearken unto this proposition: the United States Supreme Court has authorized motorist checkpoints upon the basis that there is a minimal intrusion on motorists and minimal discretion of officers. Michigan v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). It appears to me that, in South Dakota, we will permit maximum intrusions upon motorists and grant maximum discretion to officers.
It is extremely difficult to understand the nature and consequences of statism (state exalted; rights of people demoted) in its myriad disguises. Here, it is not difficult to see: statism simply prevails as a judicial philosophy. Everything we as humans think, everything we do, everything we write, everything we decide, every principle we advance is founded upon a philosophical concept. This underlying truth holds fast not only in the field of medicine, social and political systems, but also within the search for justice. These fields are anything but exact sciences.
All of us, in our exercise of free will, make a decision as to that which we honestly...
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