STATE OF SOUTH DAKOTA v. KELSO BOWERS
#28353-a-SRJ
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2018 S.D. 50, OPINION FILED 06/27/18
2018 S.D. 50
THE HONORABLE JOHN L. BROWN, Judge
Plaintiff and Appellee, v. Defendant and Appellant. APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, HUGHES COUNTY, SOUTH DAKOTA. CONSIDERED ON BRIEFS MARCH 19, 2018.
JUSTIN L. BELL of May, Adam, Gerdes & Thompson LLP,
JENSEN, Justice
[¶1.] Kelso Bowers appeals from an order entering a suspended imposition of sentence after he was found guilty of driving under the influence of alcohol following a trial to the court. Bowers claims the circuit court еrred in denying his motion to suppress evidence. We affirm.
Background
[¶2.] On July 27, 2016, Pierre Police Officer Lee Coppersmith observed a red pickup leaving Bob‘s Lounge, a bar in Pierre, around 1:42 a.m. Officer Coppersmith followed the vehicle along Dakota Avenue and testified that he observed the pickup cross the centerline, traveling to a point where half of the vehicle was in the wrong lane of traffic. Officer Coppersmith continued to follow the рickup over the Missouri River Bridge between Pierre and Fort Pierre. He testified that he observed the pickup swerve multiple times while on the bridge, at one point coming within inches of a concrete barrier. After crossing the bridge, Officer Coppersmith saw the pickup swerve toward the center median, narrowly miss it, and swerve back toward the middle of the driving lane.
[¶3.] Officer Coppersmith engaged his lights and pulled the vehicle over. Upon approаching the pickup, he detected the smell of alcohol emanating from the driver, Bowers. Officer Coppersmith observed that Bowers was slurring his speech and had glassy, bloodshot eyes. Officer Coppersmith asked Bowers to come back to the patrol vehicle. After Bowers refused field sobriety tests, Officer Coppersmith placed him under arrest for driving under the influence and transported him to jail.
[¶4.] Officer Coppersmith drafted an electrоnic affidavit for a search warrant seeking to obtain a blood sample from Bowers. He attached his electronic signature to the affidavit, emailed it to a Sixth Judicial Circuit magistrate judge, and placed a phone call to the judge. Over the phone, the judge instructed Officer Coppersmith to swear under oath that the contents of the affidavit were true and correct. The judge electronically signed the jurat on the affidavit, affirming that the affidavit had been “subscribed and sworn to” before the magistrate. The magistrate judge then signed the search warrant and emailed the affidavit and warrant back to Officer Coppersmith. After receiving the warrant, a medical professional drew a blood sample from Bowers. The sample was later transported to the State Health Lab, which found Bowers‘s blood alcohol content to be 0.289%.
[¶5.] Bowers was charged by information with alternate сounts of driving under the influence of alcohol in violation of
[¶6.] Bowers appeals, arguing that Officer Coppersmith lacked reasonable suspicion to initiate an investigatory traffic stop and that the warrant obtained for the blood draw violated the Warrants Clause of the South Dakota Constitution.
1. Whether Officer Coppersmith lacked reasonable suspicion to initiate an investigatory traffic stop.
[¶7.] Bowers first claims that Officer Coppersmith‘s testimony was “highly suspect” because Officer Coppersmith admitted he was five blocks away when he observed the vehicle cross the center line and because the police video recording did not start until after Officer Coppersmith claims to have observed this violation. Bowers also claims the police video recording of the traffic stоp conflicts with Officer Coppersmith‘s testimony because it does not show any traffic violations. Bowers asserts the video shows he was a couple of feet away from the barrier, and thus he could not have crossed the white line. Bowers also points to Officer Coppersmith‘s testimony that “the video is not as good as my own eyes,” and “from what I observed, compared to the video,” the vehicle was “two to three inches . . . from the median.” Bowеrs claims this demonstrates that Officer Coppersmith recognized that his testimony was inconsistent with events shown on the patrol vehicle camera. Bowers also presented testimony from the passenger in his vehicle who testified that Bowers did not cross the centerline and was not swerving within the lane of traffic.
[¶8.] The State responds that the circuit court is the finder of fact and sole judge of the credibility of a witness. The State argues that the circuit court‘s findings of fact supporting reasonable suspicion were not clearly erroneous. The State claims the circuit court properly relied on both Officer Coppersmith‘s testimony and the video evidence.
[¶9.] “We review the denial of [a] motion to suppress based on the alleged violation of a constitutionally protected right as a question of law by applying the de novo standard of review.” State v. Doap Deng Chuol, 2014 S.D. 33, ¶ 19, 849 N.W.2d 255, 261. “[W]e review findings of fact under the clearly еrroneous standard.” Id. (quoting State v. Lamont, 2001 S.D. 92, ¶ 12, 631 N.W.2d 603, 607). “A finding is clearly erroneous only if, after reviewing the evidence in its entirety, ‘we are left with a definite and firm conviction that a mistake was made.‘” State v. Ballard, 2000 S.D. 134, ¶ 9, 617 N.W.2d 837, 840 (quoting State v. Almond, 511 N.W.2d 572, 574 (S.D. 1994)). Once the facts have been correctly ascertained, we review the circuit court‘s application of those facts de novo. State v. Babcock, 2006 S.D. 59, ¶ 12, 718 N.W.2d 624, 628. As such, determinations of reasonable suspicion are also reviewed de novo on appeal. Ballard, 2000 S.D. 134, ¶ 9, 617 N.W.2d at 840.
[¶10.] “The Fourth Amendment‘s prohibition against unreasonable searches and seizures applies when a car is stopped by law enforcement.” State v. Burkett, 2014 S.D. 38, ¶ 44, 849 N.W.2d 624, 635 (quoting State v. Rademaker, 2012 S.D. 28, ¶ 8, 813 N.W.2d 174, 176). A police officer “may stop a car, without obtaining a warrant, if there is reasonable suspicion that criminal activity may be afoot.” Id. ¶ 45, 849 N.W.2d at 635 (quoting Rademaker, 2012 S.D. 28, ¶ 9, 813 N.W.2d at 176). “Reasonable suspicion to stop must be based on specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.” Id. (quoting State v. Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554).
[¶11.] This Cоurt looks to the “totality of the circumstances of each case to see whether the detaining officer [had] a particularized and objective basis for suspecting legal wrongdoing.” State v. Olson, 2016 S.D. 25, ¶ 5, 877 N.W.2d 593, 595 (quoting Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d at 554). “The stop may not be the product of mere whim, caprice or idle curiosity.” Id. (quoting Herren, 2010 S.D. 101, ¶ 8, 792 N.W.2d at 554). However, a police officer may “draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to them.” Id. (quoting Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d at 554).
[¶12.] The circuit court found that: (1) the stop of Bowers was initiated by a trained law enforcement officer; (2) Officer Coppersmith observed the vehicle leaving a bar early in the morning; (3) Officer Coppersmith observed the vehicle cross the center line of the roadway; (4) the possible crossing of the center line prompted Officer Coppersmith to further monitor the vehicle; and (5) Officer Coppersmith observed the vehicle weaving in its lane of travel and nearly making contact with a concrete barrier. The circuit court discounted the conflicting testimony from the passenger because of bias and the passenger‘s limited ability to observe the vehicle‘s movements. The court‘s findings and credibility determinations are supported by the evidence and are free of clear error.
[¶13.] The circuit court‘s finding that Officer Coppersmith observed the vehiclе cross the center line provided the officer reasonable suspicion to initiate the stop. See State v. Starkey, 2011 S.D. 92, ¶ 6, 807 N.W.2d 125, 128; State v. Akuba, 2004 S.D. 94, ¶ 16, 686 N.W.2d 406, 414. Additionally, the circuit court‘s findings that Officer Coppersmith observed the vehicle leaving the parking lot of a bar at 1:30 in the morning, weaving in the lane of traffic, and nearly making contact with a concrete barrier provided reasonable suspicion to believe the driver may have been driving under the influence at the time. See e.g. Rademaker, 2012 S.D. 28, ¶ 13, 813 N.W.2d at 177 (cоnsidering time of day (1 a.m.) coupled with a traffic violation as relevant to finding reasonable suspicion); State v. Scholl, 2004 S.D. 85, ¶ 14, 684 N.W.2d 83, 88 (recognizing that the likelihood of alcohol consumption for someone leaving a bar is obviously enhanced); State v. Anderson, 331 N.W.2d 568, 570 (S.D. 1983) (identifying an experienced police officer‘s observations of a defendant‘s driving skills in early morning hours as relevant to reasonable suspicion). The circuit court did not err in denying the motion to suppress as to reasonable suspicion.
2. Whether the warrant obtained for Bowers‘s blood draw violated the Warrants Clause of the South Dakota Constitution.
[¶14.] Bowers claims the procedures taken to procure the search warrant for his blood sample violated the Warrants Clause of the South Dakota Constitution. He argues the warrant was constitutionally deficient because the affidavit in support of the warrant was improper. Bowers claims that Officer Coppersmith‘s failure to physically sign the affidavit in the presence of the magistrate judge invalidates it. Bowers also argues that the affidavit must be sworn to in person before the officer authorized to administer the oath. Finally, Bowers argues the affidavit and search warrant were deficient because the phone call between the magistrate judge and Officer Coppersmith was not recorded, transcribed, and certified by the magistrate judge as requirеd by statute.
[¶15.] The State claims the procedure used here satisfied the Warrants Clause of the South Dakota Constitution because it complied with the requirements for an electronic affidavit and warrant pursuant to
[¶16.] The deferential standard of review promoted by the State is not applicable here. The issue is not whether the facts set forth in the affidavit established probable cause, but whether the procedures employed tо procure the search warrant comply with the South Dakota Constitution and statutes. “Issues of statutory and constitutional interpretation are questions of law.” Expungement of Oliver, 2012 S.D. 9, ¶ 5, 810 N.W.2d 350, 351. “We review the interpretation and application of each de novo.” Id. “In conducting statutory interpretation, ‘we give words their plain meaning and effect, and read statutes as a whole.‘” Id. ¶ 6, 810 N.W.2d at 352 (quoting State v. Miranda, 2009 S.D. 105, ¶ 14, 776 N.W.2d 77, 81).
[¶17.] The Warrants Clause in Article VI, § 11, of the South Dakota Constitution ensures:
The right of the peoplе to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.
The Warrants Clause requires a warrant to be supported by an affidavit showing probable cause. This language differs slightly from the United Stаtes Constitution which provides “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
[¶18.] SDCL chapter 23A-35 sets forth the general requirements and procedures to obtain a search warrant. Consistent with the Warrants Clause,
A warrant shall be issued only on evidence set forth in an affidavit or affidavits presented to a committing magistrate, which establishes the grounds for issuing the warrant. If the committing magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property to be seized and naming or describing the person or place to be searched. . . . Before ruling on a request for a warrant the committing magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce. Such proceeding shall be taken down by a court reporter, stenographer, or recording equipment and made pаrt of the affidavit.
[¶19.]
A committing magistrate may, by means of electronic transmission, receive an affidavit
in support of the issuance of a search warrant and may issue a search warrant by the same method. All applicable procedural and statutory requirements for the issuance оf a warrant shall be met. For all procedural and statutory purposes, the electronic document shall have the same force and effect as the original. . . . The officer executing the warrant shall receive proof that the committing magistrate has signed the warrant before the warrant is executed. Proof that the committing magistrate has signed the warrant may consist of receipt of the electronic copy of the warrant.
(Emphasis added.)
[¶20.]
[¶21.]
[¶22.] The above statutes do not address whether the written declarations in the affidavit must be signed by the declarant, or whether the oath must be administered to the officer in person. However,
prohibiting a magistrate from administering an
[¶23.] Bowers next claims that the affidavit is inadequate because it was “signed” electronically by the officer before being presented to the magistrate judge. As discussed above, the South Dakota statutes do not require an affiant to personally appear before the magistrate for the administration of the oath, nor is there any requirement in the statutes that the affiant sign the affidavit in the presence of the issuing magistrate. However, as in administering the solemn oath, the magistrate must be satisfied that the affiant has affixed his or her signature to the written declarations made in the affidavit before certifying to that fact on the jurat.
[¶24.] We also reject the claim by Bowers that an electronic signature invalidates the affidavit.
[¶25.] Finally, Bowers argues the affidavit is invalid because the oath was not recorded, transcribеd, and certified by the issuing magistrate as required by
[¶26.] Bowers‘s objections ultimately go to the question whether there is adequate proof that Officer Coppersmith‘s declarations were supported by oath. Stated another way, the question becomes whether the four corners of the affidavit provide an adequate record of the officer‘s deсlarations and the administration of an oath. The purpose of the jurat is to provide proof that an oath was administered:
A jurat containing the words “deemed duly sworn” is simply evidence of the fact that an oath was, in fact, properly administered. A jurat is not part of the oath or conclusive evidence of its due administration, and it may be attacked and shown to be false. The jurat must be executed with absolute honesty.
67 C.J.S. Oaths and Affirmations § 7, Westlaw (dаtabase updated June 2018) (footnotes omitted).
[¶27.] The affidavit contains Officer Coppersmith‘s written declarations that were “duly sworn upon oath” and his electronic signature on the date of the arrest (July 27, 2016). The jurat signed by the magistrate judge certifies that Officer Coppersmith signed the affidavit and that an oath was administered on July 27, 2016. The four corners of the affidavit contain a complete record of the written declarations of Officer Copрersmith as well as his signature and oath. Bowers has failed to show that the affidavit relied upon by the magistrate judge violated the Warrants Clause.
[¶28.] Because the search warrant was properly issued, we do not reach the State‘s alternate contention that the search pursuant to the warrant was valid under the good-faith exception to the warrant requirement. We affirm the circuit court‘s decision denying the motion to suppress evidence.
[¶29.] GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and SEVERSON, Retired Justice, concur.