*1
STATE of Appellee, FAULKS,
Tony Defendant Alvester Appellant.
No. 21628.
Supreme Court South Dakota. May 29,
Considered Briefs on 29, 2001. Aug.
Decided *2 pants, dark piece light
colored around his After face. fabric $1,400 stealing approximately from the store, Kathy owners and Ron Trel- *3 oar, perpetrator fled on Kathy foot. immediately to report called 911 the rob- bery, description of the suspect was dispatched to the Sioux Falls Police De- partment. as a described tall, thin, year 25-30 old black male wear- ing a dark fleeing colored on foot. Shortly receiving after this de-
scription, Runyan Lieutenant (Runyan) no- ticed a approaсhing vehicle from di- rection where the robbery had occurred. males, The vehicle contained two black one in the driver’s the other in the back Runyan seat. gro- followed the car into lot, cery parking store where the car parked. Runyan had not activated his emergency lights in any way signaled for stop the driver to the vehicle. As the Barnett, General, Mark Attorney Patri- vehicle, occupants began to exit the Run- Archer, General, cia Attorney Assistant yan approached the vehicle and asked to Pierre, SD, Attorneys plaintiff ap- driver, speak Floyd with the Murphy. pellee. Runyan requested that passenger, Faulks, remain in the vehicle. Hofer, Murphy Julie A. County Minnehaha Pub- explained that lic, Faulks had Mur- Office, been at Falls, SD, Defender’s At- Sioux phy’s morning, home earlier that had left torneys appellant. for defendant and thirty hour, minutes to an re- then GILBERTSON, Justice. Murphy turned and asked for a ride just car. The Murphy’s two men had left Tony [¶ Alvester Faulks was con- home, which is located а short distance victed first-degree robbery and posses- Murphy gave Omar’s Market. After sion of a appeals controlled substance. He permission vehicle, to search his officers claiming against evidence him ob- found a dark colored with an athletic tained in violation the Fourth Amend- pocket. sock in a ment. He challenges also the trial court’s refusal to admit other evidence of unsolved time, At the same robberies in the area. We affirm. Babekuhl, being interviewed shortly
who had arrived on the scene after AND FACTS PROCEDURE Runyan. morning’s Faulks’ version of the ap- [¶ 2.] On November significantly events differed from Mur- a.m., proximately 9:15 in phy’s Omar’s Market When version. confronted with this Falls, SD, Sioux knife-point discrepancy, changed robbed Faulks twice his sto- male, by a ry. dark winter changing Because and still con- Nelson, ion, stories, pursuant Babekuhl be- flicting Judge had been involved because suspect Faulks gan to then asked Faulks robbery. Babekuhl read Srstka had failed to instructions the detective bureau. аccompany him to of innocence and reason- presumption so, to do refused Babekuhl After Faulks of evidence. doubt at close able insure performed remand, Faulks’ retrial was 6.] On the knife used in the did not have Judge filed assigned to Neiles. Faulks possession. robbery in his Babekuhl evidence, rais- pretrial suppress motions place top his hands on asked Faulks to that had been raised same issues began the patrol car. As Babekuhl *4 Judge trial. to the first prior and denied his searсh, quickly right Faulks removed Judge declined to reconsider Neiles patrol car top and hand the ruling on those Faulks Srstka’s issues. pocket. Babe- right pants reached into posses- and again robbery convicted of was pock- hand from his removed Faulks’ kuhl sen- sion of controlled substance and pat-down. the Faulks et and resumed robbery twenty-three years for tenced pants his hand into his again inserted years for sentences to possession, and five it, again removed pocket, Bаbekuhl concurrently. appealed, He has rais- run After Faulks continued the search. following the issues: time, pocket a third reached into his Babe- into investigative stop inserted his own hand Faulks’ the was kuhl 1. Whether cigarette pack. As pocket by and removed a suspicion. a reasonable supported removed, being its lid pack the was pat-down search was 2. Whether the revealing pipe a crack inside. opened, constitutional. for of possession Faulks was then arrested trial court abused its 3. Whether the possession of controlled substance refusing to admit evi- discretion county jail, At Faulks paraphernalia. the dence of other unsolved robberies searched,” meaning a canvas was “screen by committed males. placed screen was between himself and the jailer he stripped. while he After had AND ANALYSIS DECISION clothing, he held
removed the last $1,300in his hands. investigative 7.] 1. Whether [¶ subsequently charged 5.] Faulks was [¶ stop by supported a reasonable trial, At robbery. the Treloars iden- suspicion. car, as Murphy’s tified the coat found in 8.] Under Fourth shoes, as well as Faulks’ consistent with Amendment to United States Constitu They also the attire of the robber. identi- tion, investigative stop an is a “seizure” in the as the mask fied sock found if is and the de purpose even its limited by The used the robber. sock also Lownes, tention brief. on the piece matched to a of fabric found (S.D.1993). 896, 898 Under the market floor after the protections the Fourth afforded robbery aby jury in the convicted Amendment, police may stop officer first-degree possession of a controlled only if has a individual that officer reason by Judge substance. He was sentenced suspicion a violation oc has years able Srstka and six Falls, Spenner City curred. v. Sioux years possession, to run con- sentences ¶ 13, 606, 610. SD secutively. appeal, Faulks’ conviction 1998 On remanded, less standard is opin- was reversed and without running. cause had been seen required than stringent backseat, rather or make an arrest. Id. was alone issue a warrant indicating than the an at- suspicion requires passenger Reasonable whim, mere tempt passed not the hide. When vehicle product be “stop Runyan, if if curiosity. enough idle It Faulks turned around to check caprice, and articula- followed vehicle. fol- stop ‘specific is based on While vehicle, which, lowing Runyan noticed Faulks together taken with ration- ble facts, reasonably unusual for a cold inferences from those al Cuny, day. v. also intrusion.’” State late-November trial court [the] warrant (S.D.1995) (citing Murphy voluntarily stopped found that had State 534 N.W.2d (S.D. Anderson, grocery the car in the lot. parking store 1983)). need Reasonable cause not be faced a similar [¶ 10.] We scenario entirely personal ob- an officer’s (S.D.1993). Krebs, servation, necessary sup- be case, two males a vehicle sus- person. another Id. Such infor- plied burglaries de- pected a series were own, reliable, sufficiently its if mation on scribed bulletin. Basеd on *5 suspicion. Ala- may establish reasonable bulletin, information in that Werm- White, v. 496 U.S. 110 S.Ct. bama approached parked er vehicle and driver (1990). 2416, 301, 2412, A 110 L.Ed.2d 309 description that matched bulle- reasonable if “the officer’s action stop is tin, and briefly interviewed the driver. justified inception, [if] at its it was was We determined that the seizure was rea- reasonably scope to the circum- related sonable, on the information based justified the interference stances which Likewise, Id. at 585. police bulletin. Krebs, place.” 504 the first State whim, stop product was “not the of mere (S.D.1993). 580, finding 585 A N.W.2d caprice, curiosity.” Cuny, or 534 idle See suspicion upon is based factual reasonable Runyan reli- acting N.W.2d at 53. was on findings, are under the reviewed specific, information and articulable able Lovmes, erroneous 499 clearly standard. suspicion that his support reasonable however, a Ultimately, N.W.2d that a had occurred. violation suspicion determination he argues did not match [¶ 11.] Faulks question on thosе facts is a of law based he not wear- description because de novo. Id. reviewed foot. ing had fled on coat and standard, of cir- totality When under the 9.] Under this the is examined standard, required had a Runyan specif whether cumstances sue becomes White, 330, 2416, 110 496 at at articulable that the occu U.S. ic and 309, those do not alter had violated law. 110 L.Ed.2d at vehicle pants that quite possible It is he The trial court found our conclusion. conclude did. We such suspect, mutable dispatch received a describ characteristics thin, man, 30, may tall, transportation as attire mode of age vary during flight appre- significantly over a dark and white material face, previously recognized fleeing encountered hension. have on foot. He We does not Fourth Amendment shortly “[t]he the vehicle after the car, precise who lacks the Murphy, descrip require policeman fit the driver of necessary suspect. car was in the level information tion of the simply shrug his travеling cause to arrest to shoul- vicinity escape.” scene, a ... criminal to in the direction that ders allow away from Boardman, 503, 30, 506 Id. at 1884-85, State v. 88 S.Ct. 20 L.Ed.2d Williams, (S.D.1978) Adams v. (quoting exception at 911. This narrow allows a 143, 145-46, 1921, 1923, pat-down search if the officer 92 S.Ct. believes a 616) (citations omitted). 612, person dangerous.” “to be armed and L.Ed.2d ¶ Tilton, Rather, stop suspicious of a 1997 SD “brief individual, in order to determine identi- N.W.2d 664. Whether a search constitutionally ty quo permissible question or to maintain status momen- is a information, tarily obtaining while more law reviewed under the de novo standard. Stanga, of the State v. light be most reasonable in 2000 SD time.” Id. facts known to the officer at the 488. Runyan’s “stop” identify was intended to pat- [¶ 14.] Faulks claims the occupants of the vehicle and obtain down search was unconstitutional additional information. Based “spe- on the our decision facts, cific and articulable” as well as the case, 792. we therefrom, inferences the stop was reason- pat-down invalidated a search because the able. officer testified that he did not believe the Be-, defendant dangerous. armed pat-down 2. Whether cause there no reasonable threat of search was constitutional. danger, pat-down search was unconsti ¶20, Id. tutional. exception
[¶ 13.] One to the search, reviewing When “the requirement Fourth Amendment’s that a reasonably issue is whether a prudent [of warrant be before a per issued search is *6 ficer] circumstances would be war formed is authorized in safety ranted the belief that or his Supreme the United States in Court ¶ Id. 18. danger.” of others was in Ohio, Terry v. While 88 in the officer Shearer had no real concerns (1968). L.Ed.2d 889 When an officer sus safety, in his this case Babekuhl testi pects subject carrying weapon, pat- is figured fied: “I he might have had a knife permissible: down search is on him from the I and was wor a police Where officer observes unusual my safety ried for own well as the other conduct him reasonably which leads Although officers.” subjective officer’s in light conclude of his experience that determinative, belief is not it is a factor to activity may criminal be afoot and that along be considered with the of totality persons with whom he dealing is circumstances. At the time of the initial presently dangerous, be armed and encounter, the officers had a reasonable where in the investigating course of suspicion that either Murphy Faulks or behavior he po- identifies himself as a may have robbed Omar’s Market. The ini liceman and makes inquiries, inquiry tial amplified, rather than dispelled nothing and where stages in the initial See id. During that suspicion. only ten the encounter dispel serves to his rea- Babekuhl, minutes of conversation with sonable fear for his own or others’ safe- given Faulks had three inconsistent ver ty, he protection is entitled for the morning’s sions of the events. Further himself and others the area to con- more, the officers knew a knife had been a carefully duct limited search of the used in the clothing outer persons such in an attempt weapons to discover addition, In [¶ 15.] Faulks repeatedly might be used to assault him. reached inside his front pocket, and disre- Tilton, standard. abuse of discretion orders. Babekuhl’s garded ¶ hands to remove his 83, 39, refused Smith, defendant 599 N.W.2d SD an officer noticed a pockets after from his regarding the admission of 353. Our rule Because bulge pocket. in his front large party perpetrator requires third evidence uncooperative be “peculiar and of Tilton’s importance the trial court to “balance the havior, for the officer to it was reasonable against evidence for the defendant pock weapon may still be believe in preserving orderly the State’s interest Tilton, 28, ¶ 20, 561 1997 SD et....” excluding prejudi- trials and unreliable or Therefore, the removal N.W.2d at 665. Garza, cial SD evidence.” State and the pockets hands from his Tilton’s ¶ (quoting 410-11 discovery methamphetamine subsequent Braddock, 452 N.W.2d Likewise, re Id. Faulks’ justified. (S.D.1990)). 19-12-3, Pursuant SDCL pocket reach into his peated effоrts to if the evidence should “be excluded its justified uncooperative,” “peculiar pack. cigarette substantially outweighed Babekuhl’s removal value is probative require officers to be “absolute We do not likely to by the harm result from its ad- armed;” ly certain that the individual Braddock, 452 mission.” reasonably prudent “is whether standard not to party perpetrator Third evidence “is would be in the circumstances [officer] if interest in exclu- be admitted the State’s safety that his warranted the bеlief outweighs proba- of the evidence its sion in danger.” others was that of Garza, tive value.” 1997 SD at ¶52, 18, at 796. argues that Babekuhl’s court argues the trial judicial claimed fear cannot withstand Faulks in scrutiny refusing he interviewed to admit because its discretion abused car on three occasions squad in Sioux evidence of six unsolved robberies threatening or hostile dur- Faulks was not prior occurred to and after his Falls that Faulks, if According to ing that time. trial 1997. The arrest November feared that Faulks Babekuhl had indeed that, on the varied court determined *7 dangerous, he would have searched clothing worn and descriptions, physical argument ig- This Faulks at the outset. robberies, in each of the six weapon used was not the fact that Faulks nores one committed the perpetrator more than considered a sus- searched until he was Therefore, court ex- the trial robberies. until after he had which did not occur pect, it would cluded the evidence because conflicting storiеs. We will given three jury. properly, To review confuse the failing pat- to not fault officers decision, examine the we must trial court’s person is a an individual before search proposed evidence. fear was in a crime. Babekuhl’s suspect reasonable, therefore the robbery on The first occurred [¶ 20.] mandates. did not violate Constitutional day the same Omar’s November was a suspect The Market was robbed. the trial court
[¶ 17.] Whether thirties, male, approxi- in his mid black refusing its disсretion abused tall, feet, weigh- mately five eleven inches of other unsolved admit evidence black wearing robberies committed a pounds, two-toned males. robbery, wielding knife. A second and a 26, 1997 in- November which occurred on Decisions to admit
[¶ 18.]
male,
pounds,
to 200
under the
volved a black
refuse evidence are reviewed
tall,
feet,
probative
inches
a ble and of little
value. The
wearing
two
standing six
handgun.
using
physical
suspects
On De-
in the
green
descriptions
coat and
occurred,
robbery
widely
another
ranged
cember
robberies
between 135
male, weighing 135 to 140
involving
Only
a black
pounds.
suspects
three
used
years
and 40
old.
pounds,
knife,
between
in the
robbery
was done
knife, wore a
suspect used a
tan
addition,
That
clothing
In
Omar’s Market.
coat and a
scarf over his face.
trench
black
worn
with
significantly.
agree
varied
We
robbery
fourth
occurred
December
A
the trial court’s conclusion that there was
male,
feet,
five
when a black
nine
“more than one
male who
com
[was]
”
tall, weighing
pounds,
robbed a
inches
mitting
Sioux
We
robberies
Falls....
knife,
suspect
The
used
wore a
casino.
Garza,
noted in
ex
“[w]hen
evidence
blue
with a scarf over his face.
dark
person
ists that
a third
demonstrates
foot,
robbery
eight
a five
Another
involved
crime,
proximity
of a
and had the
build, using a
inch black man with medium
motive and
to commit
opportunity
handgun,
gray
coat. The
crime, the
evidence
admissible.”
male,
robbery
age
a black
final
involved
(citations
¶ 26,
SD at
sought to pos- introduce evidence of other Justices, KONENKAMP, SABERS and drive-by shootings; specifically, sible concur. marks on the wheel of a vehiclе been weapon
have
caused
similar to
AMUNDSON, Justice,
dissents.
murder,
one used in the
and testimony
*8
AMUNDSON,
(dissenting).
Justice
allegedly
a
from witness who
heard a shot-
gun blast from a van. We held that evi-
I respectfully
[¶
dissent
25.]
on issue
inadmissible,
dence
noting
it was
Ohio,
1,
In Terry
two.
392 U.S.
88 S.Ct.
“clearly weaker, given
totality
the
of the
1868,
(1968),
[¶
Luna
se unreason
Larson,
18,
52,
and
the evidence here is unrelia-
able. State v.
*
affirmed,
Judge
also contends that
Neiles erred
been addressed and
the issue is
reviewing Judge
pre-trial
Srstka's
rul-
moot.
ings. As
Judge
rulings
each of
Srstka's
have
officer,
stopping
28.]
held that
Lieutenant
[¶
Court
initially
Runyan,
suspected the defendant
probable cause to
that lacks
police
officer
robbery
and driver
armed
of Omar’s
search,
pat-down
conduct
arrest could
Market. Lieutenant
was aware
that he is
reason to believe
“where he has
robbery.
that a knife had been used in the
indi-
dangerous
armed
dealing
and
with
Yet,
Runyan pulled
when Lieutenant
the
at
U.S.
88 S.Ct.
Terry,
vidual.”
at
over, he
immediately
men
did not
two
frisk
narrow, “the
exception
Terry
1883. The
is
weapon,
requested
simply
but
that
the
justification of the
...
sole
search
step
car
the driver
out of the
while the
officer and others
protection
police
Backup
remain in
passenger
the car.
units
nearby,
must
confined
and it
therefore be
shortly
arrived
thereafter. Officer Tim-
reasonably
intrusion
de-
of an
scope
merman was
first to arrive. Officer
clubs,
knives,
guns,
signed to discover
Timmerman also knew the two were sus-
instruments for the assault
other hidden
pected
of the armed
which the
S.Ct.
officer.” 392
at
U.S.
suspect had
a knife. Officer Tim-
wielded
approached
passenger
merman
(Faulks),
identification, and,
asked for
The officer must be able
it,
receiving
patrol
to his
upon
returned
facts to-
point
sрecific
articulable
car,
patrol
From his
approximately
car.
rational inferences therefrom
gether with
defendant,
to fifteen
twelve
feet
Offi-
that
reasonably support
Timmerman
a check on Faulks’
cer
ran
Ter-
suspect
dangerous.
is armed
For
identification.
the next seven
ten
ry, 392
at 1879. See
minutes,
Officer Timmerman sat
York,
also
v. New
392 U.S.
Sibron
car and
to see what was
patrol
“wait[ed]
(1968)
1889, 1903,
ing
simply
without
cause
not
these
was
question
ten to
min- met. While there
no
offi-
approximately
lasted
fifteen
safety
utes,
cer
is of
utmost
importance,
next to Officer Babekuhl
Faulks sat
merely
type
testifying
no
to after-the-fact
fear
was under
passenger
provide
not
excuse to
an
should
end-run
freely
restraint and could
move around.
of
conversation,
right
individual’s
to
free
constitutional
be
Following
this sеcond
from unreasonable searches and seizures.
accompa-
Babekuhl
if Faulks would
asked
by
Fear is not a catch
to
phrase
be used
ny him to the
bureau for further
detective
police
skirt
a citizen’s
around
constitu-
refused. At
this
questioning.
protections.
tional
This Court
adheres
despite the fact that Faulks had
point,
“totality
the notion that the
of the circum-
proximity
in close
the officers for
been
stances” must
into
be taken
account when
minutes,
past
despite
the faсt
ten
determining fourth amendment protec-
officers had previously
that none of the
Dreps,
tions. See State v.
1996 SD
was
been concerned
“totality
throughout stop. above, Considering all of the
Terry exception to a search conducted