State v. Aaberg

Dakota, Plaintiff STATE South Appellant, AABERG, Defendant Allen

Arvin Appellee.

No. Dakota. of South

Supreme Court March

Argued 28, 2006.

Decided June General, Long, Attorney E.

Lawrence Blair, Attorney R. Assistant Gener- Steven al, Pierre, Dakota, Attorneys for away South from his body in an to effort point, his At plaintiff appellant. Aaberg balance. one fell pavement. almost on the Based on Bryan County G. Hall of Minnehaha observations, these Kelderman believed Falls, Office, Public Defender’s Sioux that Aaberg was under the influence of Dakota, Attorneys South defendant “something.” appellee. 4.] Kelderman stopped Aaberg [¶ be- SABERS, Justice. he fore reached the lounge. entrance Aaberg Kelderman asked if he had been in- Aaberg (Aaberg) 1.] Arvin was [¶ drinking or if had a medical condition. driving dicted two counts of while under Aaberg responded by stating that he had beverage, the influence an alcoholic sec- prosthetic leg. He also that stated he had Aaberg ond offense. to made motion consumed beer” day. “some earlier that evidence, suppress claiming all en- law required Kelderman to Aaberg accompany suspi- forcement did not have reasonable him to patrol his car. Kelderman then perform investigatory cion to an stop. called another officer for assistance in in- granted The court the motion vestigating Aaberg whether was under the suppressing and issued an order the evi- influence of sobriety alcohol. No field appeals. dence. The State We reverse. performed tests were on account of Aa- berg’s disability and the At icy conditions. FACTS the conclusion of the investigation, Aaberg January 2.] On at approxi- [¶ driving was arrested for under the influ- mately p.m., 10:00 Sioux Falls Police Offi- ence of alcohol. Kelderman, (Kelderman), cer Nathan was 5.] Aaberg [¶ was indicted on two assisting taking another officer in a report influence, counts under driving sec- for a stolen vehicle. Kelderman was sit- ond offense.1 Prior to trial, Aaberg made ting in his car patrol ap- vehicle a motion to all suppress evidence obtained proached and started to turn into the as result investigatory of the A stop. (the parking lot of the Stoplight Lounge hearing was held before the magistrate lounge). The vehicle was driven Aa- on April court berg. city The parking streets and the lot were covered ice. 6.] [¶ Kelderman the officer who him assisted were individuals who 3.] did not Aaberg appear to commit hearing. testified at argued The State any traffic violations while pulling into the of the gave circumstances parking erratically lot. Nor he drive Kelderman a reasonable belief crimi- or in a manner that indicated he im- was activity Aaberg, nal afoot. on the paired. Kelderman continued to observe hand, argued other that it was unconstitu- Aaberg parked after he his vehicle. Aa- tional allow an stop law enforcement berg great difficulty exhibited a deal of simply having individual because he was attempting to exit vehicle. He walked the ice. lounge towards entrance at a very pace. slow and cautious Kelderman court ruled in fa- pace recalled far vor Aaberg slower and ordered the evidence and more than average per- suppressed. deliberate court found Kelder- son on similar conditions. specific, held man did not set forth articulable 32-23-1(1) (2). was indicted on violations SDCL as much to personal security belongs provided as the follow- on the of our cities Aaberg. The State raises the citizens streets

ing study in his issue: the homeowner closeted affairs”). Generally, dispose his secret Kelderraan had reasonable

Whether probable exist en- cause must before law Aaberg.2 suspicion an individ- permitted

forcement is seize 15-19, 1876-8, 20 Id. at ual. at 88 S.Ct. Standard of Review However, L.Ed.2d this 889. Court suppress A motion to [¶ 8.] Supreme recog- United States Court has a constitu alleged on an violation of based authority police “the narrow offi- nized v. right is reviewed de novo. State tional activity criminal to make suspect cers who ¶ Kottman, 116, 9, 2005 707 N.W.2d SD an per- limited intrusions on individual’s Hess, 60, 114, 2004 SD (citing 118 State v. probable security sonal based on less than ¶ 319). 314, 9, 680 N.W.2d Ballard, 134, v. cause.” State 2000 SD legal court no deference for con receives ¶ 10, 837, 840 (quoting 617 N.W.2d United The court’s factual determi clusions. Id. Place, 702, 696, 462 v. 103 S.Ct. States U.S. are er nations reviewed under the (1983)). 2637, 2642, 110 77 L.Ed.2d If Mattson, v. 2005 roneous standard. State exception officer is avail himself of the 538, 71, 14, (citing 544-45 SD 698 N.W.2d Terry, set forth in he must demonstrate Rosa, 18, 5, v. De 2003 SD State La had prior seizing suspect, 683, 685). the facts have “Once activity suspicion criminal however, reasonable determined, application been 30, at may Terry, be afoot. U.S. legal fully of a standard to those facts” 1884, (citing De at 20 L.Ed.2d 889. reviewable Id. S.Ct. Court. Rosa, La at 657 N.W.2d

685). Articulating precise a defi [¶ 10.] suspicion possi is “not

nition Decision States, 517 U.S. ble.” Ornelas United 1657, 1661, 134 116 S.Ct. L.Ed.2d The Fourth Amendment (1996). Instead, the United States the United Arti States Constitution Supreme Court has described reasonable VI, cle section of the South Dakota objective particularized a suspicion “as individuals from un protect Constitution person suspecting stopped basis seizures.3 The reasonable searches and 696, 116 activityf.]” criminal Id. at S.Ct. Supreme Court has held United States 1657,134 L.Ed.2d 911. Reasonable sus individuals are entitled to Fourth picion sense, is a nontechnical “common in protection engaging Amendment concep[t] that with the factual deal[s] common functions such as down Ohio, practical everyday on 1, 9, considerations life city Terry v. street. (1968) prudent persons, which reasonable and 20 L.Ed.2d 889 technicians, 696, 116 (noting “right legal that the Fourth Amendment act.” Id. at case, sustaining Ordinarily, appeal 2. to dismiss a direct be taken orders motion cannot Sckwaller, statutory grounds complaint or other- from court. See State v. However, wise. SD 712 N.W.2d statutory exception exists in SDCL 23A-32-5 prosecution appealing argue dispute when the from or- 3. The State does nor evidence, suppressing requiring meaning ders orders within the was “seized” property the Fourth Amendment. the return of seized in criminal berg having difficulty 911 (quoting great keeping 134 L.Ed.2d S.Ct. Gates, 103 balance. Most of Illinois Kelderman’s observa- (1983)) during 76 L.Ed.2d 527 tions were articulated following S.Ct. (additional omitted). inquiry exchange citations defense counsel: into whether reasonable exists is admit, Q: sir, you Would that as far sensitive; fact each case is to be decided explanation as the or a definition its Id. at own and circumstances. great you walking as de- 696,116 1657,134 it your police scribed report and in your jury grand testimony; would it be is a Reasonable say fair leg that his left would be demanding standard than probable less away him, sliding out from and he’d White, cause. Alabama v. have to hold his arms out to balance himself; that an would be accurate de- (1990). explained: thisAs Court scription? may stop product not be the [w]hile A: Yes. whim, caprice curiosity, of mere or idle So, Q: you’d admit that he wasn’t enough upon it is stop based stumbling, staggering, or or weaving, or “specific and which tak- articulable facts that; anything like is that correct? together en with rational inferences Staggering A: is a relative term. I’d facts, reasonably from those warrant the say probably he was a little intrusion.” my bit to estimation. Mattson, Q: But not stumbling, there was he didn’t fall down? Correct? case, present magis- falling down, In the A: He came [¶ 12.] close trate court found Kelderman had but did not fall down. failed to sufficiently articulate the facts on Kelderman concluded that it was more result, suspicion.

which he based his As a than icy Aaberg conditions and that was acting the court held that Kelderman was “something.” under the of influence As whim out curiosity. on mere or of idle mentioned, court did not fact, findings In its of the court found that testimony find Kelderman’s be incredi- “weave, stumble, Aaberg did not or fall Instead, ruling ble. court based its Additionally, down.” the court concluded inability specific Kelderman’s to state that Kelderman’s sole- was based justifying suspicion. articulable facts his ly “on Aaberg’s exiting Mr. his finding The court did make a Aaberg walking vehicle and towards the establish- “weave, stumble, did not or fall down.” any ment.” The court did not make credi- However, ad- bility determinations. testimony Aaberg dress Kelderman’s staggered, held do any 13.]We not find the court’s down, falling came close to of fact erroneous. Howev- person a normal walked slower than would er, specif- Kelderman’s set forth under similar conditions. together, supported ic facts which taken investigatory stop Aaberg. coupled Kelderman The latter walking Aaberg testified that far slow- the fact into a hours, during er than a normal person evening provide would similar bar late specific by which conditions. Kelderman also observed Aa- and articulable basis suspect inapplicable Aa- case. It is because there are officer could police credibility evidentiary alco- no conflicts the influence of berg being under justifying stop. Only Thus, for material facts this it was not unreasonable hol. concerning the one witness testified histor- investigatory to conduct an Kelderman stop, justifying confirm or ical facts initial in an effort to regarding no conflict those facts. there is suspicions. We have benefit dispel the attempt apply In a similar reviewing some of knowing now that review, clearly erroneous standard disability. to his Howev- conduct was due Supreme Court held that in er, United States pros- Kelderman did not know of the question ultimate ... type and that is case “the at the time of the seizure thesis suspicion ... should re- determining of reasonable be relevant time reason- ” U.S., de novo. Ornelas v. viewed ableness. 1659, 134 L.Ed.2d 116 S.Ct. case, Although this is a close (1996). It the historical court agree with the do analy- to clear error that are entitled whim, on a mere that Kelderman acted sis. Id. at hunch, curiosity. or out of idle Kelderman 920; Arvizu, also L.Ed.2d see U.S. v. presented specific and articulable facts 534 122 S.Ct. 151 infer- together taken with rational which (2002) 740, (stating 750 L.Ed.2d facts, reasonably from those war- ences appellate review of reason- standard ranted the seizure. able-suspicion determinations should be de Reversed. [¶ 16.] novo). Supreme explained: The Court principal components a determi- GILBERTSON, Justice, Chief [¶ 17.] proba- suspicion nation reasonable or KONENKAMP, Justice, concur. and cause the which oc- ble will be events ZINTER, Justice, concurs [¶ 18.] search, leading up curred to or the specially. then the decision whether these his- facts, standpoint the torical viewed from MEIERHENRY, Justice, [¶ 19.] objectively offi- police reasonable dissents. cer, suspicion amount to reasonable or ZINTER, specially). (concurring Justice part probable to cause. The first of the analysis only involves determination of join opinion I Court. is but the second only con- historical I write to address dissent’s question mixed of law and fact: present “[T]he clusion “that the officer did facts are admitted or estab- reasonable, historical articulable to seize lished, undisputed, rule of law ‘mere is and that the officer acted on satisfy whim, the issue is whether the facts curiosity.’” caprice, or idle Infra statutory [or constitutional] [relevant] 31. The arrives at this conclu- dissent standard, way, or it put to another the incorrect stan- applies sion because it material, to applied whether the rule of law as review; fails dard to consider record; established facts is violated.” in the historical facts contained precedent requiring and fails follow Ornelas, 696-97, 517 U.S. at 116 S.Ct. at of the of the circum- consideration 1661-62, (quoting at 919 L.Ed.2d Pull- stances. Swint, man-Standard 456 U.S. n. 1791 n. dissent’s erroneous [¶21.] (1982)). inapplicable n. standard of review is 22.] Since this Court has fol- [¶ 23.] The dissent also-holds that the applied lowed these authorities and de magistrate judge required-to was not make novo of review in cases like this on a number of relevant historical where the historical not in Thus, facts are dis- facts. the dissent concludes that the pute: magistrate was not required to even men- analyze tion or undisputed facts “that modify our Today we standard for re- Aaberg staggered, held his arms out to

viewing decisions on warrantless came close to falling past searches and seizures. Our stan- down,- and walked than slower a normal dard —abuse of discretion —conflicts person.” 29. The reasoning used Infra with the current Fourth Amendment justify this rather position remarkable analysis employed by the United States “required factfinders are not ... Supreme Court. See Ornelas United opinion enunciate credibility on the [their] States, weight of each answer a witness.” (1996).[A]s L.Ed.2d 911 a general matter Id. The dissent also surmises that fact- determinations finder failed to even consider these rele- probable cause be should reviewed vant facts because she “apparently” “did this, de said appeal. Having novo persuasive not find officer’s point reviewing hasten that Aaberg ‘probably court should take care both to review ” bit.’ However, little there Infra of historical fact for clear was no credibility finding adverse re- give weight error and to due to infer- officer, spect and there no ences drawn from those resi- conflicting concerning evidence the offi- judges dent and local law enforcement cer’s observation of substantial evidence 699, officers. Id. at 116 impairment.4 Therefore, we were even.if ¶ 53, 9, Hirning, State v. 1999 SD 592 clearly apply erroneous standard 600, Muller, N.W.2d 603. See also v. State review, decision, magistrate’s which ¶66, 12, 285, (de 2005 SD 698 N.W.2d 288 fails to such acknowledge even relevant suspicion); novo review of evidence, demonstrates clear error. ¶ Lockstedt, 47, 14, State v. 2005 SD 695 718, (same); Ballard, 722 v. N.W.2d State [¶ 24.] The dissent concedes point, ¶ 837, 2000 SD 617 acknowledging application N.W.2d 840 (same). only Because one clearly requires witness testified erroneous con- concerning justification stop, for the sideration of “the entire record.” Infra ¶27 Belmontes, and conflicting (citing because there no v. evi State 2000 SD ¶ 637). 9, facts, 115, 634, dence regarding those historical 615 See also N.W.2d ¶ 9, City 72, erroneous standard of review does v. Even Parker 1999 SD (“Clear apply. 670, 597 N.W.2d 674 error exists Among things, (3) "signs other keep officer testified: there were that he couldn't very balance his well while he was walk- (1) [Aaberg] signs he "observed exhibit ing-” great difficulty getting he had out of the (4) Aaberg's leg sliding "left would be vehicle, very and that he was slow...." him, away from and he’d have to hold (2) walking, "[Aaberg] very was slow out to balance himself....” compared person gait to a of a even on (5) Aaberg "probably was a little just way those conditions and total my tobit estimation.” apparent (6) down, me that I felt falling "came close to but something.” he was under the influence of he did not fall down.” 604 Arvizu, 273, (quoting 273-74 a review all evi- upon when record, 750-51, are with a at 749 left 122 S.Ct. at 151 L.Ed.2d in the

dence United, Cortez, has firm conviction mistake 449 (quoting States v. definite made.”) added); 690, 694-95, Sopko 411, 417-18, v. (emphasis 66 been Co., Inc., (1981))). 621, C R& See also 628-29 Transfer (“Even substan- 229 Scholl, 575 N.W.2d v. State SD finding, reviewing supports (“Whether tial evidence anonymous the evidence as must consider courts give suspi- rise tip suffices to to reasonable they definitely it aside if are whole and set depends quantity of infor- cion both the convinced mistake has been firmly conveys quality, as well as mation it added). made.”) Yet the dissent (emphasis information, reliability, of that degree of makes no affirm decision would totality under the of the circum- viewed stag- problems the driver’s mention of stances.”). and almost fall- gering, balancing, walking, evidence indication that ing. there no Because from this case comes one witness who and relevant facts were these material “that Aa- testified without contradiction magistrate’s analy- in the considered even berg staggered, held his arms out to sis, a matter of law. is clear error as there down, falling came close to Christenson, v. 51 S.D. Stokes person and walked slower than a normal (1927) (finding error where N.W. would under similar circumstances” as he evidence was not competent material and from his car to the bar at 10:00 walked considered). C.I.R., See also Sather ¶ 13 p.m. evening. supra See (8thCir.2001) (reversing F.3d out, majority points 29. As the infra facts); declining pertinent consider for undisputed together these taken C.I.R., 439 F.3d Van Scoten rational inferences drawn there- (10thCir.2006) (stating that the lower from, unquestionably particu- established a may factual reversed be objective larized and basis a reasonable fails “for clear error when it to consider to believe that was under relevant, contrary undisputed evidence Therefore, considering the the influence. material”). that is the in the of evidence record under the in Finally, 25.] dissent itself errs review, magistrate of the either standard the failing stagger- to consider defendant’s in the concluding erred officer did difficulty ing, balancing, falling, in almost suspicion to the perform have reasonable differently than a walking per- normal stop Aaberg. initial limited of son under similar circumstances. dis- failing sent’s rationale for consider these MEIERHENRY, (dissenting). Justice only material facts is that need to we Himing, In in v. we 1999 State “facts, by the as the consider determined forth the of a set review lower However, this magistrate.” Infra suspi- of reasonable court’s determination require- the approach violates well settled probable cion and cause as follows: that, making suspi- ment a reasonable determination, findings We review fact under clear- cion we must “[l]ook ly Once the facts erroneous standard. ‘totality each ease circumstances’ of determined, however, ap- have been detaining to see whether the officer has a legal standard to those objective plication for a ‘particularized and basis’ sus- pecting question of law reviewed de legal wrongdoing.” State Ken- 111, 15, general yon, 2002 SD novo.... matter deter- “[A]s minations reasonable and matter law. Observing person having de probable cause should be reviewed icy parking lot this, appeal. Having novo on said we toward a bar at 10:00 p.m. any without reviewing out point impaired hasten indication of driving does not court should take care both to review constitute as a mat- fact findings way historical clear ter of law. The the majority reaches weight error and give due to infer- is by conclusion substituting spin its by ences drawn from those facts resi- the transcribed of the arrest- judges dent and local ing law enforcement officer. magistrate’s To reverse the decision, officers.” majority focuses on one equivocal by ques- answer the officer to a ¶53, 8-9, 592 N.W.2d tion asked the defense. The officer States, (quoting Ornelas United agreed leg “sliding left away out from him” and that he had “to (1996), abandoning hold his to balance himself.” light abuse of discretion standard However, asked, “So, you’d admit Ornelas) (other omitted). Thus, citations that he wasn’t stumbling, staggering, or or our review starts with the weaving, that,” or anything like the officer findings inquiry of fact and an toas gave following ambivalent answer: clearly whether the are erroneous. term, “Staggering is say a relative I’d said: We have probably a little my bit to A trial court’s of fact from a added). (Emphasis estimation.” In suppression hearing upheld must be un- weighing the evidence and judging the they clearly less are erroneous. This credibility of the testimony, function under Court’s erro- disregarded the officer’s statement con- neous standard is determine whether cerning staggering and found as follows: the decision of the lower court lacks the 5. Officer Kelderman observed Mr. Aa- evidence, support of substantial evolves berg disembark from the vehicle and from an applicable erroneous view of the slowly approximately walk 30 feet on whether, considering law or the entire very icy with diffi- great surface record, we are left a definite and culty towards the front doors of the firm conviction that mistake has been Stoplight Lounge. determination, making In made. a light review the evidence in most 6. Officer Kelderman did not observe trial

favorable court’s decision. Aaberg weave, stumble, Mr. fall down. Belmontes, State v. 2000 SD (citations omitted) (em- N.W.2d majority 29.] The that [¶ determines added). phasis magistrate because the not did make a standard, In applying specific 28.] that finding Officer Kelderman’s majority credible, first determines the magis- not she should findings trate’s of fact are not finding er- have made an “that Aa- additional I agree. majority roneous. The then berg staggered, de- held his arms out to down, termines the facts are sufficient to falling came close to suspicion. constitute reasonable person.” This and walked slower than a normal disagree majority. where I with the required The We have never to factfinder magistrate, as determined opinion credibility do enunciate her on the witness, not weight constitute as and of each answer of a as weave, Aaberg man not observe Mr. suggest to here. We did majority seems stumble, or fall down.” the factfin- consistently deferred have advantage factfinder’s of the der because here evi- The record contains hearing the witnesses and seeing and magistrate support dence position a better being in therefore we should not disturb the findings, and credibility and the evidence weigh Further, appeal. of fact on findings all light the testi- particular answer weight must to inferences drawn “give due find- magistrate’s Enhancing mony. findings” by from those inap- record seems the cold ings based on 9, 592 Hirning, court. clearly erroneous given our propriate Ornelas, (quoting at of review. 911). 134 L.Ed.2d Therefore, findings on the of fact based 5 and In addition inquiry as those facts and the to whether also above, referenced suspicion, I constitute reasonable would findings regarding following made magistrate’s affirm the conclusion of law officer’s observations: reasonable, present the officer Kelderman did not ob- 3. Officer and articulable to seize driving. any impaired signs serve whim, ca- that the officer acted on “mere conditions, for both the 4. surface curiosity.” price, or idle lot, city parking were streets very icy. solely diffi- on Mr.

7. Based

culty exiting his vehicle establishment,

towards the Officer Aa- Kelderman concluded Mr. 2006 SD 61 berg was under the influence JENSEN, Kirk Petitioner “something.” Officer Kelderman Appellant, community performing was not role; already he had con- caretaker prior seizing Mr. cluded LINCOLN COUNTY BOARD OF COM

that he was under the influence of and the Lincoln MISSIONERS Coun “something.” ty Zoning Commission, Planning and record, on a review of the I am Based Respondents Appellees. left with a and firm conviction that definite Nos. 23887. magistrate’s any were clearly erroneous. All conflicts the evi- Supreme Court of South Dakota. dence be resolved in favor of must Considered on Briefs March Belmontes, magistrate’s findings. July Decided Appar- SD 615 N.W.2d at 637. persua- find

ently,

sive officer’s

“probably a little bit.”

Further, the officer does statement magis-

not render erroneous the Kelder- finding

trate’s fact “Officer

Case Details

Case Name: State v. Aaberg

Court Name: South Dakota Supreme Court

Date Published: Jun 28, 2006

Citation: 718 N.W.2d 598

Docket Number: 23745

Court Abbreviation: S.D.