STATE of South Dakota, Plaintiff and Appellant, v. Allen H. KISSNER, Defendant and Appellee.
No. 14863.
Supreme Court of South Dakota.
Decided July 9, 1986.
Rehearing Denied July 12, 1986.
Considered on Briefs Sept. 13, 1985.
IV.
THE CIRCUIT COURT DID NOT ERR BY ADMITTING INTO EVIDENCE, AT THE DISPOSITIONAL PHASE, THE CALIFORNIA HOME STUDY REPORTS.
In the dispositional phase of the proceedings herein, the circuit court received into evidence California home study reports of father‘s Modesto, California home. Mother objected to the admission thereof because she was unable to examine the authors, and because the reports were not trustworthy. On appeal, mother contends the admission of these reports was erroneous, but we disagree.
First, the rule of evidence embodied in
The Order and Decrees appealed from are affirmed.
MORGAN, WUEST and SABERS, JJ., concur.
FOSHEIM, C.J., concurs specially.
FOSHEIM, Chief Justice (concurring specially).
The conclusions reached in this case should be given limited application based on rather unique facts which reveal “best interest of the child” exceptions to the general rule that siblings should be raised together.
The separated children do not have a common father and mother. While C.M.H. is the mother of all of the children, D.H. is the father of N.H. only for whom he was granted custody. If custody of N.H. were granted to a person other than the natural father, a different conclusion would likely be indicated.
While the father of N.H. showed considerable immaturity during his relationship with the mother, he now provides N.H. with a stable home environment, preferable to that of the other siblings in the custody of the mother.
Richard L. Bode of Maher, Carter, Arendt & Bode, Pierre, for defendant and appellee.
MORGAN, Justice.
In this DWI case, the state appeals from an order of the trial court suppressing all evidence and observations of the arresting officer and dismissing all charges filed against the defendant, Allen H. Kissner. We reverse.
On August 31, 1984, the dispatcher for the Pierre, South Dakota, police department received a call from a private citizen who reported that the driver of a Chevrolet stationwagon with Arizona license plates appeared to be driving in an intoxicated manner. The citizen also reported that the vehicle, which contained two males, was stopped at a certain gas station in Pierre. The dispatcher relayed this information to a police officer, who observed a vehicle matching that description at the gas station. The officer watched the vehicle from across the street until the defendant and another male entered the vehicle and drove away. The officer stopped the vehicle about three blocks from the gas station, even though he did not observe any traffic violations or erratic driving by the defendant, who was driving the vehicle at that time. After administering a number of field sobriety tests, the officer arrested the defendant for driving under the influence of alcohol. The officer also conducted a post-arrest search of the vehicle and found some controlled drugs.
The state charged the defendant with driving under the influence of alcohol, driving under the combined influence of alcohol and drugs, and unauthorized possession of a controlled substance. In a Part II information, the state also charged the defendant with being a habitual offender under
On appeal, the state argues that information provided to the police by a private citizen may be sufficient to create a reason
A police officer must have a specific and articulable suspicion of a violation before the stop of a vehicle will be justified. The factual basis required to support a stop is minimal. The stop cannot be the product of mere whim 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. State v. Anderson, 359 N.W.2d 887 (S.D.1984).
The United States Supreme Court has ruled that reasonable cause for a stop need not be based upon an officer‘s personal observations; the factual basis for the stop may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also United States v. Aldridge, 719 F.2d 368 (11th Cir.1983), and Marben v. State, Dept. of Public Safety, 294 N.W.2d 697 (Minn.1980). In addition, this court has stated that a stop may be justified even though the officer did not witness any violations. See Anderson, supra; State v. Johnson, 320 N.W.2d 142 (S.D.1982).
In the present case, the officer received specific information from a private citizen about a suspected violation of the law, including a description of the vehicle, its license plates, the number of occupants, and the vehicle‘s location. The officer was able to verify this information when he arrived at the location. Under such circumstances, a report from a private citizen is clearly sufficient to create a reasonable suspicion of a violation; it was not necessary for the officer to observe erratic driving or a traffic violation.
The state also argues that the trial court erred by dismissing the information even though none of the grounds stated in
The order of the trial court is reversed.
FOSHEIM, C.J., WUEST, J., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, concur.
HENDERSON, J., dissents.
SABERS, J., not having been a member of this court at the time this action was submitted to the court, did not participate.
HENDERSON, Justice (dissenting).
In the case at bar, the arresting officer stopped defendant‘s moving motor vehicle “even though he did not observe any traffic violations or erratic driving by the defendant, who was driving the vehicle at that time.” He admitted, under oath, he had no basis for stopping the vehicle. The only basis for the officer‘s stop of defendant‘s vehicle thus becomes a private citizen‘s report that the driver of an Arizona station wagon “appeared to be driving in an intoxicated manner.” (Emphasis supplied mine.) This is loose language. When the officer first observed the vehicle, there was no one in it and the dispatch report did not indicate who was driving, the manner of driving, or a description of the driver. Thus, when defendant and another individual entered the vehicle and drove away, the officer had no way of knowing if defendant was the driver who precipitated the citizen‘s report.
In State v. Jim Anderson, 359 N.W.2d 887, 892 (S.D.1984) (Henderson, J., concurring in result), I did not subscribe to the view that a police tip (based on hearsay) could, in and of itself, constitute articulable suspicion to stop a moving vehicle.
It is apparently a mental difficulty for some lawyers to realize that stopping a car on a highway by a law enforcement officer without a reasonable basis for doing so is an unlawful seizure under the
The
Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979) (footnotes omitted). There must be a factual basis to establish specific and articulable facts. Dear students of the law, where are the facts here? The one—the only—supposed fact is a conclusion; a conclusion by a citizen that it “appeared.” We, in South Dakota, have abandoned the sanctity of the
For the reasons expressed in Jim Anderson, 359 N.W.2d at 892-94, and for the reasons expressed in State v. Richard Anderson, 331 N.W.2d 568, 573 (S.D.1983) (Henderson, J., concurring in result), I dissent from the reasoning and conclusion of the majority opinion. As I believe the trial court‘s order was correct, I respectfully dissent.