STATE of South Dakota, Plaintiff and Appellant, v. Jim Dale ANDERSON, Defendant and Appellee.
No. 14493.
Supreme Court of South Dakota.
Decided Dec. 12, 1984.
359 N.W.2d 887
Considered on Briefs Sept. 14, 1984.
Gary G. Colbath of Banks & Johnson, Rapid City, for defendant and appellant.
MORGAN, Justice.
This court allowed the state of South Dakota to appeal a suppression order entered by the Sixth Judicial Circuit Court. The trial judge held that Highway Patrolman Steven Kenoyer (Kenoyer) did not have probable cause to stop and arrest Jim Dale Anderson (Anderson) and that all evidence derived from the stop and arrest including the breathalyzer and blood test results, should be suppressed. We reverse and remand.
The Wall, South Dakota, Police Department telephoned Kenoyer at his home in Philip, South Dakota, at approximately 8:13 a.m. on March 17, 1983. The Wall Police Chief told Kenoyer that an intoxicated driver had left a Wall gas station headed east toward Philip in a black International Scout. Kenoyer drove west out of Philip and located the Scout between Philip and Wall. He followed it for two miles back
The trial court concluded that in spite of the suspicion raised by the police tip, the facts and circumstances known to Kenoyer at the time of the stop did not justify the stop or the arrest. The trial court‘s Conclusion of Law II reads:
The stop by Trooper Kenoyer lacked probable cause in that once he investigated as a result of the Chief of Police‘s tip, the situation presented to him did not have numerous independent factors outside of the police tip on which to base his findings for probable cause. Once he made the stop all of the factors that he articulated and the sobriety tests which he normally relied on mitigated against probable cause except for the PBT and thus Trooper Kenoyer lacked probable cause for both the initial stop and for the subsequent arrest.
The trial court distinguished probable cause to stop from probable cause to arrest, but failed to distinguish the standards.
This court recently examined the requisite grounds for a justifiable routine traffic stop in State v. Anderson, 331 N.W.2d 568 (S.D.1983). The Anderson Court cited and quoted a Minnesota case, Marben v. State, Dept. of Public Safety, 294 N.W.2d 697, 699 (Minn.1980), for the proposition that:
[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.
331 N.W.2d at 570 (emphasis in original). In Anderson, this court adopted the Minnesota Supreme Court‘s definition of the “reasonable suspicion” standard which was taken in part from People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975), in which the New York Court stated:
“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[.]’ ”
36 N.Y.2d at 420, 369 N.Y.S.2d at 74, 330 N.E.2d at 44 (citation omitted). The reasonable suspicion standard was thus applied to routine traffic stops in South Dakota, including stops involving suspicion of DWI. Anderson, 331 N.W.2d at 570. This court previously applied the reasonable suspicion standard in other factual situations. See State v. Soft, 329 N.W.2d 128, 129 (S.D.1983); State v. Coe, 286 N.W.2d 340 (S.D.1979); State v. Boardman, 264 N.W.2d 503 (S.D.1978).
The arresting officer in Anderson, an experienced police officer with training in detection of drinking drivers, observed the defendant veer into snowpacked areas of the road and weave back to the clear lane. This activity afforded a specific and articulable reason to stop the defendant‘s car to determine whether he was driving under the influence of an alcoholic beverage. 331 N.W.2d at 570. The reasonable suspicion standard was also applied in Whitson v. Department of Public Safety, 346 N.W.2d 454 (S.D.1984). The arresting officer in Whitson observed the defendant ignore a “right turn only” lane marker and force two other vehicles to slow down to avoid a collision. This court held that in the absence of a factual basis to support the argument that a stop was random, the argument that it was unlawful is without merit. Id., citing Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Circumstances giving rise to a “‘specific and articulable suspicion of a [traffic] violation‘,” are also sufficient to justify the investigatory stop of a vehicle. Whitson, 346 N.W.2d 454 at 456 (S.D.1984); Anderson, 331 N.W.2d at 570. Either the Police Chief‘s tip, even though based on hearsay, or the equipment violation on Anderson‘s car was sufficient to justify the stop in this case.
Kenoyer stopped the Scout in a parking lot and he and the driver both emerged from their vehicles. Kenoyer requested a driver‘s license and vehicle registration and Anderson produced both immediately. Kenoyer asked Anderson to seat himself in the patrol car and Kenoyer proceeded to issue Anderson a warning ticket for equipment violations. As Kenoyer wrote the ticket, he detected a strong odor of alcohol. Anderson admitted at that time that he drank the night before. Kenoyer asked Anderson to take a series of four physical sobriety tests in order to determine the state of Anderson‘s physical and mental dexterity. Anderson passed by (1) correctly reciting the alphabet, (2) correctly counting from one to ten and back from ten to one, (3) performing the Rhomberg balancing test, and (4) walking heel to toe. Upon Anderson‘s satisfactory completion of the physical sobriety tests, Kenoyer asked him to get back into the patrol car and take a preliminary breath test with portable breath testing equipment (PBT).
Dr. Joel Padmore is the State Chemist and Director of the South Dakota State Chemical Laboratory. His agency has provided blood alcohol analyses for law enforcement agencies since 1951 and has provided technical support and training for breath testing devices since the late 1960‘s and early 1970‘s. In 1979, the State Chemistry Lab assumed responsibility for supervision and maintenance of all evidentiary breath testing devices and received legislative approval for that function as of July 1, 1980. Under its statutory responsibilities, the State Chemistry Lab evaluated portable breath testing devices for the South Dakota Department of Public Safety in the spring of 1981. In a deposition taken for this case by Anderson‘s attorney, Dr. Padmore explained the PBT.
Preliminary breath testing is accomplished through the use of portable devices that, according to Dr. Padmore, are as accurate statistically as intoxilyzers, the results of which are currently used in this state as evidence to show blood alcohol levels in excess of .10 and violations of
Anderson apparently contends that under
Any person who operates any vehicle in this state is considered to have given his consent to a chemical analysis of his breath . . . to determine the amount of alcohol in his blood . . . provided the test is administered at the direction of a law enforcement officer having lawfully arrested the person for a violation of
SDCL 32-23-1 .
Under Anderson‘s theory, a law enforcement officer would have to subjectively determine from relevant facts and circumstances that probable cause for arrest ex
A lawful arrest requires that the arresting officer have either an arrest warrant or “reasonable” or “probable” cause to believe the person arrested had committed or was committing a crime. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). This court examined the requirements for probable cause for arrest in State v. Glick, 87 S.D. 1, 201 N.W.2d 867 (1972), and stated that:
“To establish ‘probable cause’ proof beyond a reasonable doubt is not required. ‘On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed * * * suspicion is not enough‘.”
87 S.D. at 5-6, 201 N.W.2d at 869, citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134.
In State v. Maves Camp, 286 N.W.2d 333 (S.D.1979), this court stated that a police bulletin, or a tip such as the Wall Police Chief‘s call to Kenoyer, may constitute probable cause when independent factors, outside the police bulletin or tip, also provide a basis for probable cause. Id. Kenoyer testified that he did not observe Anderson violate any traffic laws prior to the time that he stopped the Scout and that Anderson passed the four physical sobriety tests he administered and that Anderson did not exhibit physical manifestations of being under the influence of alcohol prior to administration of the PBT. By Kenoyer‘s admission, the PBT was administered on the basis of the Wall Police Department tip, which, under this court‘s standard for probable cause for arrest, is not sufficient on its own, see Maves Camp, supra. However, the odor of alcohol about Anderson and Anderson‘s admission that he had consumed alcohol the night before are additional facts which, in this case, constitute probable cause.
The State contends that
The issue is whether preliminary breath alcohol tests, facilitated by portable breath testing devices, may be given on the scene before probable cause for arrest becomes apparent. We believe that
Anderson was not under arrest in this case and chemical analysis of his breath cannot be justified under the implied consent law. His license could not have been revoked had he refused to take the PBT and the statutory presumptions provided by
Every person operating a motor vehicle which . . . is operated in violation of any of the provisions of this chapter shall, at the request of a law enforcement officer, submit to a breath test to be administered by such officer. If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter.
This statute permits a preliminary breath test prior to arrest when a person operates a vehicle in violation of any provision contained in
Anderson contends that law enforcement officers who administer the PBT test must have probable cause to arrest a suspect for violation of a provision of
The legislature would not have gone to the trouble of passing
PBT results may not be used as evidence against a defendant. The statute specifically provides that: “If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter.”
We believe that
We reverse the trial court‘s order and remand for further proceedings.
FOSHEIM, C.J., WOLLMAN, J., and WUEST, Acting Justice, concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
Although I concur in the result of this case, I cannot accept that the police tip (based on hearsay) would, in itself, constitute articulable suspicion to stop the car of appellant. An equipment violation would justify stopping the car. Here, there was an equipment violation. But, under the language of this opinion, a hearsay tip opens the door for any officer to now stop someone on the highway for no reason at all other than a hearsay tip. It is bad enough that we have cars being stopped, at random, all over South Dakota at this time for “traffic checks” (I refer not to roadside truck weigh-in stations), driver‘s license checks, and equipment safety checks. This
We cannot live, as citizens, in total fear of going out onto the highway and being stopped for no reason at all. If the citizenry can be stopped by armed officers in police vehicles with lights flashing, and forced to pull over onto the shoulder at the officers’ unbridled discretion, we no longer are a free people. As citizens, we should not have to tolerate a safety inspection of our vehicle when the annual mandatory safety inspection law of this state was repealed in 1979. See 1979 S.D.Sess.Laws ch. 220.3 In this case, because of the factual scenario, law enforcement has not run amok, but the language of this opinion will permit law enforcement to take another step forward in eliminating the freedom that the public are supposed to enjoy as citizens of this Republic. For, as I pointed out in State v. Anderson, 331 N.W.2d at 573 (Henderson, J., concurring in result):
Erosions of liberty do not come in giant leaps, they come in miniscule encroachments often hidden to the trained and educated mind. Like a thief in the night, language can steal a liberty deeply ingrained in the fabric of the American way of life. I am afraid of each little encroachment on the liberty of my fellow Americans on the highway.
“As Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).” Delaware, 99 S.Ct. at 1401.
In my Sequel in State v. Maves, 358 N.W.2d 805, 812 (S.D.1984) (Henderson, J., dissenting), my last words were: “In the land of the free, where has freedom gone?” One of the places that it has been lost, as the narrative suggested, was in print in the courts of our land. Travel and privacy on the public roadways interfered with at the unbridled discretion of police