*1 Dakota, STATE of South Plaintiff Appellant, CZMOWSKI,
Eugene F. Defendant Appellee.
No. 14952. Supreme Court of South Dakota. 25, 1986. Considered Briefs Oct. 27, 1986. Aug. Decided Ledbetter, Gen.,
Clair B. Asst. Atty. Lofgren, Legal Intern, Pierre, Maxine plaintiff and appellant; Mark Meierhen- V. ry, Gen., Atty. on the brief. Cline, Rapid City,
Jean M. for defendant appellee. MORGAN, Justice. appeal
This is intermediate in prose- driving cution for while under the influence appeals of alcohol. The mag- state from a istrate’s order the defendant’s suppress motion all evidence obtained law enforcement officers they after investigate defendant to his driv- ing. We reverse and remand. September
Late one afternoon County/Sturgis, Dakota, the Meade South dispatcher law enforcement received call from an reporting male caller possible drunk The reported driver. caller Sturgis that he was at a truck following that he had been an eastbound 1-90, vehicle on interstate highway goes through Sturgis. He described the pickup gave vehicle as a white its license number. He stated that it was weaving over the road just and had gone past Sturgis.
This immediately information was re layed Trooper Oren Hindman who Sturgis also the time.* Hindman the port-of-entry radioed station seven Sturgis miles east on highway 1-90. He suspected vehicle, gave described the its * Court, We (Eighth note Hindman was the victim Crim. 85-318 Circuit Lawrence Aikins, May Dakota, 1985). of a homicide in 1985. State v. County, South *2 port-of- Dist.Ct.App.1983). Aldridge Dodd, In anony Harold the the to number there, by him to entry tip detain mous received officer asked the law enforcement night reported the driver. late at “suspi authorities persons cious in or a around construction reported the Five minutes after Hindman fooling site with The tipster, vehicles.” Dodd, at to the the vehicle vehicle site, who to be a near claimed tenant the weighed. Dodd did port-of-entry to be not thought described the vehicle to in be anything about defendant’s notice unusual suspicious activity. volved in this The After the operation of the truck. truck court held these that details corroborated scales, weighed on the Dodd asked was tip gave suspi the rise a reasonable to building. the park defendant to back of cion justify stop. sufficient to a building entered When defendant the him him on and asked to smelled alcohol stop making The officer a on the Dodd did wait there for Hindman. tip basis of a is not corroborated else unusual about de- anything not notice personal independent knowledge to have of fendant, until Hindman arrived. who waited vehicle. See justify stopping the a facts to arrived, identified When Hindman de- Kissner, (S.D.1986). State v. 390 58 of that he fendant as the driver the vehicle assessing police “In ar justifications for Hindman to detain. had been asked type rests or of less intrusions a offensive sobriety field perform defendant several arrests, objective we than full take an view him DUI. Hindman tests arrested may the facts and evaluate the the operate never defendant ve- observed knowledge collectively.” of all the officers hicle. 787, Wolff, Brewer (8th v. 529 F.2d 790 Based this evidence the Cir.1976); see also United States Mer v. (1) tip anonymous concluded: that was ritt, Cir.1982) (same (10th 1263 695 F.2d uncorroborated, (2) that the officers had principles apply investigatory stops), anything a not observed sufficient create denied, 916, 1898, cert. 103 461 U.S. S.Ct. suspicion upon they could reasonable (1983). 77 286 L.Ed.2d (3) justify a of defendant’s Supreme rejected has ef- The Court by hearsay tip that the was twice removed stops investigative forts limit to situa- from the who made the officer personally has tions in which the officer support it reasonable sus- that could not a suspicious conduct. Adams v. observed Thus, picion. the issue is whether Williams, 143, 1921, 32 407 U.S. 92 S.Ct. anonymous by tip was corroborated evi- (1972). 612 L.Ed.2d dence, than the officers’ observa- other tions, Aldridge, stop under F.2d justify sufficient to a 719 at 371. Constitution, Amendment IV. United States may tip case question No is raised about Dodd’s authori- hearsay have from Hindman’s been ty a as law enforcement officer make view, objective our view of point Dodd’s (law See SDCL 49-28-65 enforce- officers collective knowledge of all the powers Department ment Public Safe- Brewer, permits supra, us to conclude ly, inspectors). ty in hearsay but was tip that the report tip, to the law enforce An first hand stead first-hand details, if by dispatcher. ment Even could be may it is other corroborated hearsay, Supreme on which Court serve as a sufficient basis considered Adams, supra, rejected the contention Aldridge, United States uphold stop. 368, (11th Cir.1983), should used citing hearsay rule of evidence be 719 F.2d 371 Roper, (11th States v. analyze F.2d 984 whether reasonable United 702 Porter, Cir.1983); subleties of the see also United States for a exists. “[T]he appropri cert. denied (4th Cir.1984), hearsay should not thwart an 738 F.2d rule 622 — 389, police making stop].” —, response 323 ate U.S. 105 S.Ct. 83 L.Ed.2d [in Brock, 1924; also see (1984); (Fla. 92 State v. U.S. at S.Ct. So.2d Aldridge, supra, (anonymous tip proving trial, received its case at issues agency certainly law enforcement and radioed to action have not become moot. officer). mag stopping Consequently, the magistrate’s The order the mo- erroneously istrate in this case concluded suppress tion to is reversed and the matter prevent hearsay nature of the proceedings. for further remanded giving it ed from the officers reasonable suspicion upon which to *3 FOSHEIM, C.J., WUEST, J., and collectively, anonymous the first Viewed HERTZ, Cir.J., acting as a Supreme Court report possible that a drunk driver hand Justice, concur. “weaving the road” was cor- all over the vehicle a the location of roborated J., HENDERSON, part in concurs very reported it been short time after in part. dissents Sturgis; in additional corroboration was
provided by description, in- the vehicle’s J., SABERS, having been member cluding plate its These license number. of the court at the time this action was details were similar the corroborative court, participate. the submitted to did not reported Aldridge, supra. details in HENDERSON, (concurring Justice in Although person did not have part, dissenting part). in knowledge driving, al of defendant’s Findings of Fact and Conclusions of Law together, they all the facts were viewed predicated Order thereon, were filed on provided suspi April 17, 1985. This Court must find these cion detain Dodd could defend Findings of Fact and Conclusions of Law to investigate ant and Hindman could further clearly be erroneous. This is so sup- in a ability operate defendant’s his vehicle. Hall, pression hearing. State v. 353 magistrate the Thus also erred as a matter (S.D.1984). N.W.2d 37 scope Our of review concluding of law in that the was uncor is thus set and majority opinion the men- assuming roborated and in that the officers tions it not. As the majority opinion fails personally every were observe apply review, the scope correct they fact before could have reasonable sus because this law-trained did not picion enter clearly Findings erroneous of Fact supporting Because the facts the and Conclusions of Law and predi- Order collectively, are viewed we find it unneces- thereon, cated I respectfully dissent to the sary theory to consider the state’s that holding. substantive agent purposes Dodd was Hindman’s for I do believe that the magis- law-trained making trate ruled correctly in this evidentiary matter, which is the issue of appeal, Finally, dispose we of defendant’s and I would affirm his order contention that court should dismiss suppress. motion to I further add that I appeal as moot because of the death of certainly agree majority with the that this Trooper Hindman. Defendant fails to cite appeal is not moot because of tragic any authority proposition his that Hind- death of Trooper Oren Hindman. We man’s death makes this matter moot. This should rule on the merits of this case and give deficiency alone would us reason to extent, to that agree I with majority. say that defendant waives the issue. State Shull, 284, appreciate To (S.D.1983); 331 1 background N.W.2d fn. of this dis- Grooms, part, see also sent in I State v. refer Kissner, State v. 359 901 N.W.2d 58, 390 (S.D.1984). (S.D.1986) N.W.2d Perhaps authority is 60 (Henderson, cited Anderson, patently J., because this claim is so meritless. State v. Jim dissenting); 359 may present Hindman’s death 887, (S.D.1984)(Henderson, J., 892 evidentiary result); the state with in difficulties State Richard concurring in
75 568, (S.D.1983) point vehicle business. We then arrive at Anderson, 331 N.W.2d J., concurring result). (Henderson, judging precise as to the ques- this case tion: Was there articulable of a recognize majori- We first must having justi- crime been committed which degree ty opinion misstates the of knowl- Inspector making fied afore- edge possessed by Hindman and said and detention of defendant? It is to recognize fails Inspector Dodd and dealing are with a obvious we Fourth as referred to difference between know, Amendment case. As we 1868, Ohio, Terry v. 392 U.S. S.Ct. prohibits search or seizure. unreasonable (1968), investigation of L.Ed.2d and the Here, As I the defendant was seized. have a DUI. out, pointed only there all, anony- examine First we must brings us phone here. This then to the description gave a of the tip. mous It very conceptual I plateau which feared number, plate direction happen my could in this state. refer to travel, It action of travel. was based *4 Anderson, in in concurrence result Jim information, and this information N.W.2d at 892. alone, required Trooper Hindman —via to Inspector stop Dodd state I concur in the result of this radio — Crystallize and isolate this in- case, accept police cannot that the Then examine it: Was this an formation. would, itself, (based hearsay) con- suspicion of the commission of articulable suspicion to stop stitute articulable The answer is no. the offense of DUI? appellant. equipment of An car violation automobile, Body color of type and Here, justify stopping the car. would travel, number, of and ac- plate direction But, equipment there was violation. an itself, not, in a justify tion of travel will opinion, language under the of this Anderson, stop. at N.W.2d See Jim hearsay any for tip opens the door offi- enforcement can 893. Before a law officer stop highway cer to now someone on stop the officer a motor must have a hearsay for no reason at all other than specific and articulable of a tip. Dep’t violation. Whitson Pub. of Safe- probative is no whatsoever in value There (S.D.1984). True, ty, 346 de- of Trooper the de- Hindman’s observations fendant a commercial vehicle and had was to causing or the defendant under- fendant port entry. at the of This at cannot look and go tests the scene. We not, however, question. stop in is determine, stop, and after the after the Rather, question is the intrusion, has as State to that by at the Inspector request made Dodd Why? Simply found. because Hindman. Trooper demand of In other facts cannot after-the-fact. Later boot- words, stopped was de- the defendant stop. Hence, justification of the strap the he must tained told that wait for to facts after the majority’s allusion Trooper Hindman. by Inspector Dodd stopped defendant was QUESTION: you Didn’t inform him that totally Hindman are Trooper held for for highway he to wait there The majori- at hand. irrelevant the issue patrolman? ty opinion out corroboration reaches yes Trooper to wait for ANSWER: I— doing, it errs. Sim- justify In so Hindman. Entry Inspector Dodd had ply put, Port of QUESTION: you had him OK. So told suspicion of a stay he had to there because there arrived at the violation. When defendant coming somebody was—was to talk Entry southeast of Tilford Port of Station him? Sturgis, Dodd and de- Inspector Yah. ANSWER: request Trooper of him mere tained at the Hindman, however, did Thus, Hindman. we must not confuse operat- any of the not at defendant port entry because commercial time observe ing Inspector the vehicle and Dodd did anything observe unusual in defendant’s Dakota, STATE of South Plaintiff ability complete the vehicular maneuvers Appellee, necessary pass port entry check requested. Inspector which Dodd ANDREWS, William K. aka Kurt D. cognizant of
was not the details of the Andrews, Appellant. Defendant and dispatcher’s report and not notice he did anything unusual defendant’s behavior No. 15102. (nor speech driving) his defend Supreme Court South Dakota. port entry building.
ant entered the absolutely nothing wrong, saw yet Aug. he 1986. requested defendant to come inside the entry building
port of after defendant satisfactorily performed all tests. Are we stage, law,
now at a anony where an precedence (a) mous takes in law over first-hand observation of an individual (b) satisfactory an officer and maneuvers aof vehicle in presence of an officer? Apparently, “tip” we have elevated a from direct, individual over first Hence,
hand observation at the scene. *5 there no are facts which to build suspicion.” “articulable “A well-estab lished rule is that findings of fact must
support the conclusions of law.” Hart pence v. Youth Forestry Camp, 325 (S.D.1982). Therefore,
maintain the law-trained ruled
correctly in this matter as there of a viola tion. findings support His the conclusions
of law. There clearly is no erroneous de termination disagree below. I with the ma jority opinion’s judicial exercise of its func finding
tion vaulting facts and such findings judicial over the trial court’s func tion. The magistrate’s law-traiiied decision
should be affirmed in the motion suppress.